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

566 F.2d 289, 184 U.S. App. D.C. 397, 1977 U.S. App. LEXIS 11559

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 16, 1977
• Docket: 74-1899
• Status: Published

Opinions

LEVENTHAL, Circuit Judge:

This opinion considers the issue of the conflict between the public interest in shielding responsible government officials against the harassment of vindictive or ill-founded law suits and the interest of those whose reputations may have been injured by statements of government officials. In Barr v. Matteo,

1 the Supreme Court struck the balance in favor of the officials. We do not view that 1959 ruling as undercut by later decisions, and adhere to it.

Plaintiff, Expeditions Unlimited, brought an action for libel against Clifford Evans, Chairman of the Department of Anthropology at the Smithsonian Institution’s Museum of Natural History, and against the Smithsonian Institution. The action is based on a letter by Evans in which he was critical of plaintiff’s capabilities in the field of underwater archaeological excavation. The district court granted summary judgment for defendant Smithsonian Institution on governmental immunity grounds.² The district court granted summary judgment for defendant Evans on the grounds of his absolute privilege in making statements within the scope of his duties as a government employee. We remand for further exploration of the issue whether Evans was acting within the ambit of his employment.³ However, we agree with the district court that if Evans was acting within the ambit of his discretion, he would have absolute immunity. We do not reinstate the view in the panel opinion that there might be only a qualified privilege. We now state our reasons.

It was the fear of chilling legitimate official conduct that motivated the Supreme Court’s decision in the seminal case of Barr v. Matteo, supra. Barr also involved an action for defamation. There, the Acting Director of the Office of Rent Stabilization, a federal agency, was sued by another government employee who claimed that the Acting Director had maliciously issued a press release injurious to the employee’s reputation. The Court held that once it had been established that the action taken “was within the outer perimeter of [his] line of duty,” the Acting Director was entitled to absolute immunity against liability in damages even though his action was a discretionary exercise and was allegedly prompted by malice. 360 U.S. at 575, 79 S.Ct. at 1341. Justice Harlan⁴ reasoned that an absolute privilege was required because

. officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.

360 U.S. at 571, 79 S.Ct. at 1339.

The federal common law rule of absolute immunity of officials sued for defamation furthers the goal of effective administration of government in the public interest.⁵ A qualified immunity would be dependent upon a myriad of factors and a particularistic assessment of the facts of each case,⁶ leaving an official at hazard to anticipate whether or not he is protected. “An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon circumstances and motivations of his actions, as established by the evidence at trial.” Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976). Even the need to find the time and money for a defense⁷ would have a chilling, if not paralyzing, effect on an official’s willingness to speak out, in the exercise of his discretion, to further the public interest.

At the time we granted rehearing en banc we were aware of Economou v. U.S. Department of Agriculture, 535 F.2d 688 (2nd Cir. 1976).⁸ We disagree with Econo-mou, and view it, indeed, as illustrating the dangers of a doctrine providing only qualified immunity. There, an administrative complaint and accompanying press release of the Department of Agriculture had alleged, on the basis of an audit, that Econo-mou had failed to maintain the minimum prescribed capital balance required for a registered futures commission merchant. An administrative law judge issued a decision finding a violation. While the administrative proceeding was pending on appeal, Economou, alleging defamation and wrongful institution of administrative proceedings, sued various officials of the Department of Agriculture, including the administrative law judge, for $32 million in damages.

As the Economou court recognized, if Barr had governed its decision, its inquiry would have stopped if “the alleged conduct of the defendants . . . was ‘within the outer perimeter of their authority’ and involved the exercise of discretion.” 535 F.2d at 691. Instead, the court, rejecting Barr, held that only a qualified “good faith” immunity was applicable, and remanded the case for further proceedings.

This rejection of Barr can only exacerbate an already serious problem of modern government — the tendency of bureaucrats to sit tight rather than take action likely to rile the individuals or groups being regulated. The nation’s welfare is dependent upon officials who are willing to speak forthrightly and disclose violations of the law and other activities contrary to the public interest.⁹ Their voices will be stilled if they perceive or fear that the person involved has the resources or disposition to defend with all affirmative tactics. When millions may turn on regulatory decisions, there is a strong incentive to counter-attack.

In Economou, the Second Circuit suggested that Barr had been undermined by the Supreme Court’s decisions in cases arising under 42 U.S.C. § 1983. We disagree.¹⁰ The Supreme Court decisions in § 1983 eases do not overrule Barr. They rather establish the rule for cases where fundamental, constitutional rights are involved, and declare that ordinary rules of official immunity must yield when the executive is charged with exercising his special power as a government official in a way prohibited by the Constitution. In Scheuer v. Rhodes,11 far from undercutting Barr, Chief Justice Burger cited Barr and its antecedent, Spalding v. Vilas,12 as cases illuminating the inherent necessity of providing broad protection to executive discretionary acts in the context of defamation actions. He noted, however, that Barr and Spalding arose “in a context other than a § 1983 suit” (at 247, 94 S.Ct. at 1692.). The absolute immunity those cases granted to federal executive officials was not extended to state officials sued under § 1983; they could claim only qualified immunity. Chief Justice Burger’s opinion makes the reason clear: Since § 1983 gives an action against state officials when constitutional violations are invoked, it is patently inconsistent with that federal statutory action to apply a federal common law rule of absolute immunity for executive officials subjected to suit by the statute.¹³ While § 1983 retains the absolute immunity of officials exercising power within the judicial or quasi-judicial ambit,¹⁴ the plain provision for suits against officials in the executive branch precludes an absolute immunity defense.

Our decision in Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974), extended the Scheuer rule of qualified immunity in § 1983 cases to an action against federal officials that involved one of our “most cherished liberties,” the freedom from arbitrary arrest and detention. 165 U.S.App.D.C. at 32, 506 F.2d at 93.

The defamation action in the case at bar involves damage to business reputation — an interest of no greater weight than the interest in personal reputation involved in Barr. While damage to reputation is not inconsequential, and can, under some circumstances, qualify for procedural protection under the due process clause,¹⁵ it is not as basic to a free society as the Fourth Amendment right to be free from arbitrary search and seizure of person or property, a right so precious that a remedy in damages has been inferred from the Constitution itself. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Nor is Barr undercut by Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973). That was essentially a case involving legislative immunity, under the speech or debate clause, and the Court remanded for a determination of the extent of legisla-five immunity. Doe involved a suit by parents for invasion of privacy from the dissemination of a congressional report that identified students in derogatory contexts. The ruling as to the Public Printer and the Superintendent of Documents was only that they did not have an absolute immunity greater than the immunity of the legislators who tendered the documents for printing. The Court held that although they acted “within the outer perimeter” of their statutory duties in printing what was tendered, they had no “independent immunity.” 412 U.S. at 322-23, 93 S.Ct. 2018. The Court’s decision was responsive to the character of the Government Printing Office, which acts as a service organization for the three branches of government. 412 U.S. at 322, 93 S.Ct. 2018. The Court concluded that for purposes of the judicially-fashioned doctrine of immunity, the officials of the Printing Office were immune from the suit only to the extent that they were acting within the “sphere of legitimate legislative activity.” 412 U.S. at 324, 93 S.Ct. 2018.

Barr premises that it is better to leave unredressed some defamations¹⁶ by officers acting out of malice or excess zeal, than to subject the conscientious to the constant dread of retaliation. For every case of malicious governmental action potentially remedied by replacing Barr with a qualified immunity, hundreds if not thousands of other actions in the public interest may be deferred or omitted. There is too much to be said for the Barr choice, there was too much hard work and hard thought when the problem was faced squarely by great judges like John Harlan and Learned Hand, to sweep it aside as the detritus of a doctrine that has been nibbled away sub silentio.

The judgment in favor of defendant Smithsonian Institution is affirmed. The judgment in favor of defendant Evans is remanded for limited inquiry whether his letter was within the outer perimeter of his duties.

So ordered.

A-l

APPENDIX

The part of the panel opinion in this' case dealing with the Smithsonian Institution is reinstated as the opinion of the panel. Majority op. at p. - of 184 U.S.App.D.C., n. 2, p. 291 of 566 F.2d. It is reprinted here for convenience.

No. 74-1899

EXPEDITIONS UNLIMITED AQUATIC ENTERPRISES, INC., A CORPORATION, APPELLANT NORMAN SCOTT SMITHSONIAN INSTITUTION, ET AL.

Appeal from the United States District Court for the District of Columbia

(D.C. Civil Action 54-71)

Argued 18 September 1975

Decided 28 June 1976

John J. Pyne, for appellant.

Jeffrey T. Demerath, Assistant United States Attorney, with whom Earl J. Silbert, United States Attorney and John A. Terry and Suzanne D. Murphy, Assistant United States Attorneys, were on the brief for appellee.

Before LEVENTHAL and WILKEY, Circuit Judges and SOLOMON,* United States Senior District Judge for the District of Oregon.

WILKEY, Circuit Judge:

This case comes before us on appeal from an order of summary judgment entered 31 July 1974,¹ in an action for libel brought by petitioners against the Smithsonian Institution and its Regents, and against Clifford Evans, Chairman of the Department of Anthropology at the Museum of Natural History. The claim arose out of a letter writ-' ten by Evans, in which he expressed views as to the capabilities of petitioner Expeditions Unlimited in the field of underwater archaeological excavation. The merits of the libel claim are not presently before us, since summary judgment for defendants was granted on the grounds of Smithsonian’s governmental immunity and Evans’ absolute privilege in making statements within the scope of his duties as a government employee.

IMMUNITY OF THE SMITHSONIAN INSTITUTION

The holding of the district court that the Smithsonian Institution may not be sued for libel is affirmed. That conclusion rests upon our reading of the Federal Tort Claims Act. Because we find that the Tort Claims Act should be read as granting federal agencies immunity from suit for libel, we do not reach the issue of the Institution’s immunity status at common law.

In finding immunity under the Act, the initial step is to determine whether the defendant organization is a “federal agency” within the definition set forth in the statute.² Although the Smithsonian has a substantial private dimension,³ we conclude that the nature of its function as a national museum and center of scholarship, coupled with the substantial governmental role in funding⁴ and oversight,⁵ make the institution an “independent establishment of the United States,” within the “federal agency” definition.⁶

Section 1346(b) of Title 28, U.S.C., creates subject to the provisions of 28 U.S.C. §§ 2671-80, a remedy against the United States for injuries wrongfully caused by any “employee of the government.”⁷ Because the Smithsonian is a federal agency, its employees are “employee[s] of the government,” and the § 1346(b) action thus may lie.⁸ Under 28 U.S.C. § 2679(a), the § 1346(b) remedy is made exclusive in cases where that section applies, even where an agency may elsewhere be authorized to sue and be sued in its own right.⁹ However, under 28 U.S.C. § 2680(h), the provisions of the Tort Claims Act, including the jurisdictional provision, § 1346(b), are made inapplicable to libel actions, such as the one presently before us.¹⁰ The difficult interpretive problem posed by this case is to determine the effect of this exceptions clause.

On the one hand, the exceptions clause might be viewed as making the Tort Claims Act entirely inapplicable to libel actions, in which event the common law immunity status of a defendant would govern, and an action might be possible if independent jurisdictional grounds could be found. On the other hand, § 2680(h) could be seen as imposing a bar to suit, if the Tort Claims Act is regarded as a systematic statute governing all tort claims, with the exceptions clauses setting forth the areas where suit is to be barred.

There are significant arguments to be made in favor of the first view. The language of the exceptions section makes no reference to any creation or, more properly, continuation of long established governmental immunity in the categories of cases it sets forth. Rather, the exceptions section only states that the provisions of the Tort Claims Act “shall not apply”.¹¹ It would not be illogical to conclude that, in these categories of cases, the Act neither creates nor removes immunity but leaves the question of suability as it was before the Act, to be determined by other statutes and by common law rules. This interpretation is further bolstered by the construction which has been given to § 2680(7) and (m), which except the Tennessee Valley Authority and the Panama Canal Company from the Act’s provisions. These parallel provisions to the libel exception (h) have consistently been held not to create any immunity, but to allow suit to be brought against the organizations just as before the Act, under separate statutory authorizations.¹²

While logic and a consistent reading of the statute would, by themselves, thus lead us outside the Act at the very start, to inquire as to the Smithsonian’s common law immunity status and as to other possible bases of jurisdiction, other factors cause us to reject this approach. Legislative history, the great weight of judicial precedent, and a desire to facilitate future application of the Act, convince us that § 2680(h) should be read as an affirmative grant of immunity to “federal agencies” in the types of deliberate tort cases which it describes.

We conclude from the structure of the Tort Claims Act, and from the legislative reports accompanying its passage, that Congress probably did not intend to leave unaffected by the Act the categories of suits excepted by § 2680(h). While primarily seeking to expand governmental liability for torts, it appears to us that Congress also sought to systematize and centralize the immunity laws.¹³ One evidence of this appears in § 2679(a) of the statute, which in essence renders ineffective any other laws allowing suit or creating remedies against an agency, where the actions “are cognizable under section 1346(b).”¹⁴ Another evidence of this centralizing impulse appears in the context of exceptions clause § 2680(a).¹⁵ This section sets forth the category of discretionary activity, for which immunity has traditionally been granted. That Congress bothered to include it in the exceptions section is consistent with the view that it meant to embody, within § 2680 all of the instances in which immunity is to exist under the statute. It seems to us an unreasonable conclusion, at least in the instances of exceptions (a) and (h), that Congress intended for courts to go beyond the Act, and inquire into common law immunity status and alternative jurisdictional grounds.

More affirmative, though still ambiguous, evidence that Congress saw itself as preempting the common law of immunity appears in the reports which accompanied the bill through the House and Senate. In discussing the exclusivity provision,¹⁶ the reports of both chambers make the following statement:¹⁷

This will place torts of “suable” agencies of the United States upon precisely the same footing as torts of “nonsuable” agencies. In both cases, the suits would be against the United States, subject to the limitations and safeguards of the bill; and in both cases the exceptions of the bill would apply either by way of preventing recovery at all or by way of leaving recovery to some other act, as, for example, the suits in Admiralty Act. It is intended that neither corporate status nor “sue and be sued” clauses shall, alone, be the basis for suits for money recovery sounding in tort.

From these statements may be inferred a general intent to treat all federal agencies alike as regards immunity, irrespective of what their immunity status was at common law.¹⁸ We find it likely that Congress conceived of itself as codifying the immunity law, and eliminating any necessity to look at the common law, once it is concluded that the defendant is a federal agency within the definition of the Act.

We might perhaps take a different view of legislative intent if this were a matter of first impression. But we give weight to the fact that since the time of enactment, it has been the consistent practice of the federal courts to read both exceptions (a) and (h) as defining grants of immunity to “federal agencies.”¹⁹ The courts’ consistent sense of legislative intention is impressive even though the decisions fail to acknowledge the difficulty presented by the literal text.²⁰

We are also influenced, we must confess, by the consideration that a contrary reading of the statute would lead to perplexing questions as to the state of the common law, while not leading to a clear change of result in any imaginable case. For there to be any difference in result, the defendant would have to be within the “federal agency” definition of § 2674, and yet be sufficiently private as to lead to the inference that Congress, in creating the organization, intended not to render it immune.²¹ Were both of these conditions met, it would be necessary, further, that the subject matter of the suit be within one of the clauses of § 2680 which are presently construed to confer immunity.

We cannot envisage that more than a few, if any, cases would meet all of these requirements, and thus be decided differently under a literal reading of the Act. Yet to determine whether it might be applicable would require the courts in a considerable array of cases fo make a complex and speculative inquiry into common law immunity status.²² We think the legislature intended the courts to decide suability questions by direct reference to the statute rather than by pursuit of the will-o’-the-wisp of the prior law. We conclude that exception clause (h) should continue to be read as defining the existence of immunity in suits involving deliberate torts, and that the summary judgment in favor of Smithsonian should be affirmed.

1 . 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

2 . That judgment was affirmed by the panel for the reasons stated in Judge Wilkey’s opinion. After ordering sua sponte that the issue of the Smithsonian’s- immunity would be decided without oral argument under Rule 11(e), the en banc court chose not to consider the matter. The portion of the panel opinion dealing with the Smithsonian is therefore reinstated as the opinion of the panel and for convenience is reprinted in the appendix.

As to the immunity defense raised by the individual defendant Evans, the panel opinion, Judge Leventhal dissenting, ordered a remand to the district court to determine whether the case was appropriate for absolute immunity or qualified immunity. It contemplated an individualized inquiry into whether the added benefits derived from the award of absolute immunity to the official outweighed the loss of litigant rights. It set out a number of factors for the district court to consider, including the nature of the litigant’s interest, the expected impact of the differing immunities on the performance of the official’s duty and the governmental as opposed to private character of that duty.

3 . Although Evans’ responsibilities included responding to information inquiries from foreign governments in his field, the record does not elucidate whether official replies had to be channelled in a certain manner, whether Smithsonian officials respond to personal inquiries in their official capacity, and if the letter was a personal letter whether it is considered proper for several officials to comment independently on foreign queries. These considerations are relevant to the determination of whether Evans acted within the perimeter of his responsibilities or whether, as plaintiff claims, he was acting in a personal capacity.

4 . While only three other justices concurred in Justice Harlan’s opinion, his views on the doctrine of absolute immunity did command a majority of the Court. Justice Stewart dissented only because he felt that under the particular facts of Barr, the official was acting beyond the outer perimeter of his duties. 360 U.S. at 592, 79 S.Ct. 1335. See also Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959).

5 . The need to determine whether an official is acting within the outer perimeter of his duties will not defeat the purpose of absolute immunity. For example, on the facts of this case, the determination of whether Evans was acting within the scope of his employment may be made on the basis of affidavits from his superiors elucidating his duties and the procedures usually followed in answering queries from foreign governments. This type of limited inquiry may typically be dealt with on a motion for summary judgment. Even at trial the issue is for the court. The official knows the scope of his discretion. The possibility of such an inquiry is unlikely to deter any official in the vigorous pursuit of his responsibilities.

6 . In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), which held that state executive officers sued under 42 U.S.C. § 1983 were only entitled to a qualified immunity, the Supreme Court explained that the limited privilege was dependent upon “the existence of reasonable grounds for belief formed at the time and in light of all the circumstances, coupled with good faith belief . . .

416 U.S. at 247-248, 94 S.Ct. at 1692.

7 . Although government counsel now often defend even personal actions against federal officers arising out of their official duties, they are not required to do so. See, e. g., 28 U.S.C. § 517 (1970):

The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.

8 . Subsequent to the oral argument en banc in December, 1976, the Supreme Court granted certiorari, sub nom Butz v. Economou, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977).

9 . See Federal Trade Commission v. Cinderella Career and Finishing Schools, Inc., 131 U.S.App.D.C. 331, 404 F.2d 1308 (1968), where this court, in a situation not unlike that in Econo-mou, refused to enjoin the Federal Trade Commission’s issuance of a press release about a proceeding for unfair trade practices, even though we recognized that the petitioner might prevail before the administrative agency and would then be unable to remedy the injury caused by the adverse publicity. Our decision was based on the fact that the FTC could only achieve its goal of protecting the consumer by informing him of the actions it was taking in his behalf. 131 U.S.App.D.C. at 337, 404 F.2d at 1314.

10 . For decisions of other circuits citing Barr with approval, see, e. g., Williams v. Gorton, 529 F.2d 668, 672 (9th Cir. 1976); Mandel v. Nouse, 509 F.2d 1031, 1033 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2630, 45 L.Ed.2d 671 (1975).

11 . 416 U.S. 232, 246-247, 94 S.Ct. 1683 (1974).

12 . 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896). Spalding held that the head of an executive department has absolute immunity for special communications made by him pursuant to an act of Congress for matters within his authority.

13 . See Scheuer v. Rhodes, 416 U.S. at 243, 94 S.Ct. at 1690:

Final resolution of [the scope of qualified immunity] must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. § 1983. In neither of these inquiries do we write on a clean slate. It can hardly be argued, at this late date, that under no circumstances can the officers of state government be subject to liability under this statute. In Monroe v. Pape, [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492] Mr. Justice Douglas, writing for the Court, held that the section in question was meant “to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.” . . Through the Civil Rights statutes, Congress intended “to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” .

Since the statute relied on thus included within its scope the “ ‘[m]isuse of power, possessed by virtue of a state law and made possible only because the wrongdoer is clothed with the authority of state law,’ ” id., at 184, [81 S.Ct. 473] (quoting United States v. Classic, 313 U.S. 299, 326 [61 S.Ct. 1031, 85 L.Ed. 1366] (1941)), government officials, as a class, could not be totally exempt, by virtue of some absolute immunity, from liability from its terms. Indeed, as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that there is no absolute immunity.

14 . Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

15 . See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). But see Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

16 . Under certain circumstances, declaratory and injunctive relief may be obtained against defamatory statements by government officials. For example, in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), the Supreme Court held it was possible for several organizations which claimed they had been defamed to obtain declaratory and injunctive relief to strike their names from the Attorney General’s list of subversive organizations. 341 U.S. at 139-40, 71 S.Ct. 624. The availability of this equitable relief is consistent with the rationale of Barr since it does not involve the personal liability of an official, and is therefore unlikely to deter him in the vigorous pursuance of his duties. B. C. Morton International Corporation v. Federal Deposit Insurance Corporation, 305 F.2d 692, 695-96 (1st Cir. 1962).

Sitting by designation pursuant to 28 U.S.C. § 294(d).

1 . App. at 6-8.

2 . 28 U.S.C. § 2671. Definitions

As used in this chapter and sections 1346(b) and 2401(b) of this title, the term “Federal agency” includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instru-mentalities or agencies of the United States, but does not include any contractor with the United States.

******

3 . The Smithsonian has private endowment funds which in 1970 totalled $33 million. General Hearings Before the Sub-Committee on Library and Memorials, 91st Cong., 2d Sess., 323 (1970) (hereinafter Hearings). In that year over $15 million of private money went toward operations of the Institution, and almost one-third of the employees were non-federal. Id. at 253.

4 . Approximately 75% of the Institution’s operating funds come from federal appropriations. Hearings, supra note 3, at 253, 321.

5 . Eight of the seventeen Regents of the Institution acquire their positions by virtue of holding other high positions in the federal government. 20 U.S.C. § 42 (1970). The remaining Regents are appointed by joint resolution of Congress. 20 U.S.C. § 43 (1970). The Institution is audited periodically by the General Accounting Office. See Hearings, supra note 3, at 362-97.

6 . 28 U.S.C. § 2671 (1970). While there is no outstanding stock of the Smithsonian, it has more in common with the “mixed ownership government corporations,” 31 U.S.C. § 856 (1970), like the F.D.I.C., which have been found to be “federal agencies,” Davis v. F.D.I.C., 369 F.Supp. 277, 279 (D.Colo.1974); Freeling v. F.D.I.C., 221 F.Supp. 955, 955-56, (W.D.Okla. 1962), than with corporations whose only significant governmental contact is a federal charter. Pearl v. United States, 230 F.2d 243, 245 (10th Cir. 1956) (Civil Air Patrol held not a federal agency). The substantial federal funding and the important supervisory role played by governmental officials are the most important factors linking it to the government. Cf. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).

7 . 28 U.S.C. § 1346(b) (1970).

8 . 28 U.S.C. § 2671 (1970).

9 . 28 U.S.C. § 2679. Exclusiveness of remedy

(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

10 . 28 U.S.C. § 2680. Exceptions

The provisions of this chapter and section 1346(b) of this title shall not apply to—

sfs sfc i}; % %

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentations, deceit, or interference with contract rights.

11 . There is not only the language of § 2680, the exceptions section, but its interrelation with § 1346(b), the jurisdictional section. The section entitled “Exceptions” begins: “The provisions of . section 1346(b) of this title shall not apply to (h) Any claim arising out of . libel, slander . . .” If the section conferring jurisdiction simply does “not apply,” can the Tort Claims Act have any relationship to an action for libel? We conclude that it does, but the answer appears by no means as simple as has been assumed.

12 . Gardner v. Panama R.R., 342 U.S. 29, 31, 72 S.Ct. 12, 96 L.Ed. 31 (1951) (dictum); Brewer v. Sheco Construction Co., 327 F.Supp. 1017, 1018-19 (W.D.Ky.1971); Latch v. T.V.A., 312 F.Supp. 1069, 1071-72 (N.D.Miss.1970); De Scala v. Panama Canal Co., 222 F.Supp. 931, 934 (S.D.N.Y.1963). The Congressional reports accompanying the Act explicitly indicate that some of the exceptions were included because “adequate remedies were already available.” H.R.Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945); S.Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946).

13 . See Wickman v. Inland Waterways Corp., 78 F.Supp. 284, 286 (D.Minn.1948).

14 . 28 U.S.C. § 2679(a) (1970). The exception clauses dealing with the T.V.A. and the Panama Canal Company, 28 U.S.C. § 2680(1) and (m) (1970), were clearly not intended to bar suit under separate authorizing statutes, see note 12 supra, and thus these clauses weaken somewhat the argument that the Act was intended to centralize all laws concerning federal governmental immunity. However, the uniqueness of these organizations, coupled with the fact that their amenability to suit was well established at the time the exceptions were adopted, lead us to conclude that we are not bound by rigid parallelism to clauses (1) and (m) in our construction of clause(h).

¹⁵

The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

16 . Now 28 U.S.C. § 2679(a) (1970).

17 . H.R.Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945); S.Rep. No. 1400, 79th Cong., 2d Sess., 33-34 (1946) (emphasis added).

18 . However, this inference is not compelled by the actual language of the reports. The reports’ statement, that suability clauses in agency charters do not affect the applicability of the Tort Claims Act, would not be in conflict with a view that common law immunity doctrine governs in cases thrown outside the Act by the language of the exceptions clause. Nor would the statement that corporate status alone is not a basis for suit, be in conflict with a conclusion that the Smithsonian may have no operative immunity arising from common law, in light of its corporate status and its unique mix of private and governmental operations, funding, and management. The language about the exception clauses either preventing recovery or leaving recovery to another Act also presents no inconsistency, since even if a court were to find operative common law immunity, a jurisdictional statute (“some other act”) apart from the Act’s § 1346(b) would have to be found for any suit to be entertained, at least in federal court.

19 . Goddard v. District of Columbia Redevelopment Land Agency, 109 U.S.App.D.C. 304, 306, 287 F.2d 343, 345, cert. denied, 366 U.S. 910, 81 S.Ct. 1085, 6 L.Ed.2d 235 (1961); United States v. Delta Indus. Inc., 275 F.Supp. 934, 936-37 (N.D.Ohio, 1966); James v. F.D.I.C., 231 F.Supp. 475, 477 (W.D.La.1964); Freeling v. F.D.I.C., 221 F.Supp. 955, 956-57 (W.D.Okl. 1962).

20 . In Goddard v. District of Columbia Redevelopment Land Agency, 109 U.S.App.D.C. 304, 307, 287 F.2d 343, 346 (1961) the court asserts that libel claims “are cognizable under section 1346(b)” within the meaning of the exclusiveness of remedy provision, § 2679(a), even though the exceptions clause of § 2680(h) flatly states that the provisions of § 1346(b) “shall not apply to” libel. Cf. Scanwell Laboratories, Inc. v. Thomas, 172 U.S.App.D.C. 281, 286, 521 F.2d 941, 946 (1975), where the court observed, “If the claim falls outside the Act completely or within one of the exceptions-to-liability embodied in the statute, . . . ” without finding it necessary to explain how the claim for negligent misrepresentation might “fall outside the Act completely.”

21 . For discussions of how immunity status would be determined at common law, see R.F.C. v. Menihan Corp., 312 U.S. 81, 84, 61 S.Ct. 485, 85 L.Ed. 595 (1941); F.H.A. v. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940); Keifer & Keifer v. R.F.C., 306 U.S. 381, 389, 59 S.Ct. 516, 83 L.Ed. 784 (1939).

22 . Case law indicates that the inquiry as to common law immunity must focus on whether Congress intended to confer immunity at the time the organization was created. See cases cited, note 21 supra. Yet it appears unlikely that any directly expressed Congressional intent could ever be found in the instance of a federal agency created after the passage of the Tort Claims Act, since Congress almost certainly gave no consideration to the immunity issue, but deferred instead to the framework of the Act.