Henry Winston v. United States

KAUFMAN, Circuit Judge,

whom Chief Judge LUMBARD, and Judges MOORE and FRIENDLY join (dissenting) .

When this appeal was first considered by a panel of the Court, two judges were of the opinion that the Tort Claims Act permitted federal prisoners to sue the Government for injuries resulting from “operational negligence” of prison authorities, and the writer of this opinion, for reasons set forth at length in a dissent, agreed with the Government (appellee) that the Act did not permit such claims. Reconsideration of the appeal by all the active judges has done nothing to alleviate the awkwardness of such a closely divided court. A majority of five judges now concurs in the opinion delivered by the panel majority; and it also files an opinion of its own, apparently intended to answer arguments made by this writer in the dissent. On the other hand, there are now four judges who are unpersuaded by the arguments made in *274support of the majority’s interpretation of the Act — -as expertly and concisely stated in the first opinion, or as expanded and redefined in the second. Admittedly the majority’s decision in this case is contrary to all precedent. We believe that it is also completely without foundation in legislative history; and that when viewed together with the decision rendered this day on rehearing in banc of Muniz v. United States, 305 F.2d 285 (2d Cir. 1962), its result is “so outlandish” that the majority’s interpretation of the Act should not prevail. Brooks v. United States, 337 U.S. 49, 52-53, 69 S.Ct. 918, 93 L.Ed. 1200 (1949).

Since there is now a conflict in the Circuits, and it would seem likely that the Supreme Court will be urged to resolve the dispute, we deem it appropriate to express in some detail the reasons which lead us to reject the majority’s decision. In doing this, the minority adopts the writer’s earlier dissent, and undertakes herein to deal with points raised in the in banc decision filed today.

I.

In the panel opinion, the majority proceeded from an assumption that the Tort Claims Act eliminated the sole barrier to prisoner actions against the Government because of its general waiver of sovereign immunity. The opinion filed today restates the same assumption, with an assertion that prisoner claims fall “squarely within the plain meaning of the Act.” Moreover, since there are thirteen exceptions expressly written into the statute (none of which refers to prisoner actions), the majority states without qualification that there is “no room for the exception of additional situations which would otherwise be covered by the statute.” In other words, we are told that what Congress did not say it did not mean.

At the outset, we doubt the usefulness and wisdom of this approach to statutory interpretation, and the canon of construction upon which it rests. If it were so very clear that Congress intended to permit prisoner suits as the majority asserts, presumably its opinion would command greater support by the members of this Court; presumably also the judges of the 7th and 8th Circuits would not have decided to the contrary, and would not have persuaded District Court judges in this Circuit, as well as several others, to follow their lead.1 Nor would a panel of this Court, including two judges of the present majority, have found those contrary decisions “persuasive analogy” in resolving another question of interpretation of this same Act. See Klein v. U. S., 268 F.2d 63, 64 (2d Cir. 1959).

The majority’s categorical statement that the judiciary may not find with propriety that this particular Act contains any implied exceptions is unfounded for a still more important reason. It is contrary to Supreme Court precedent. Thus, in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court interpreted the Tort Claims Act to exclude claims by soldiers for non-combatant injuries, an exception of far greater magnitude than the one now under consideration.2

The question raised by this appeal is whether Congress, by virtue of a general (but not unlimited) waiver of sovereign immunity in respect of personal injuries inflicted through negligence of Government employees (e. g., injuries to pedestrians caused by accidents involving post office trucks), intended to permit suits by federal prisoners for injuries caused by negligent operation of the prisons. The precise dispute is whether the statu*275tory language, creating Government liability “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, “in accordance with the law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b), necessarily requires a decision that Congress did intend to permit prisoner actions for negligence.

In support of the affirmative answer to this question, the majority argues that there are two situations in which the law of Indiana (where Winston’s prison was located and the alleged acts of negligence were supposed to have taken place) recognizes private liability in “like” circumstances. The first situation concerns a physician’s liability to a patient for medical malpractice.

This analogy is not unprecedented. In 1949 the Court of Appeals for the Tenth Circuit considered whether an action could be maintained under the Tort Claims Act for injuries suffered by a soldier because of negligent medical treatment administered by army surgeons.3 A panel of that Court, one judge dissenting, found that there would be liability in the “like” circumstances of the private physician-patient relationship. In an opinion closely resembling that filed by the in banc majority in this case, the panel reasoned:

“The terms of the statute are clear, and appellant’s action for a money judgment based upon the negligence of army surgeons states a cause for relief under the Act, unless it falls within one of the [then existing] twelve exceptions specifically provided therein; or, unless from the context of the Act it is manifestly plain that despite the literal import of the legislative words, Congress intended to exclude from coverage civil actions on claims arising out of a Government-soldier relationship.” 178 F.2d 2-3.

The court noted that soldier claims arising out of non-combatant activities were not among the specific exceptions written into the statute. In addition, it found that all but two of the eighteen tort claims bills introduced in Congress during a ten year period preceding the enactment of the Tort Claims Act specifically excluded claims by soldiers. Since Congress “conspicuously omitted to exclude” such claims, the court thought “the only logical conclusion is that it deliberately refrained from doing so”; and it held that soldier claims must be allowed, even if “the result of [the] omission to exempt such claims leads to dire consequences and absurd results * Id. 3.

Despite this legislative history, and the Tenth Circuit’s logic, the Supreme Court did not agree that the possibility of “dire consequences and absurd results” could be dismissed so lightly. In connection with the “like” circumstances of the physician-patient relationship, the Supreme Court said:

“It is true that if we consider relevant only a part of the circumstances and ignore the status of both the wronged and the wrongdoer * * * we find analogous private liability. In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. * * * But the liability assumed by the Government here is that created by 'all the circumstances,’ not that which a few of the circumstances might create.” 4

The court then considered the other circumstances incident to the Government-soldier relationship, and impliedly concluded that imposition of tort liability would bring about a result “so outlandish” as to reflect a “congressional purpose to leave injuries incident to service where they were, despite literal language and other considerations to the con*276trary.”5 Consequently, it held that soldier claims could not be maintained under the Tort Claims Act. Feres v. United States, supra; see also United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954). We believe circumstances surrounding the Government-prisoner relationship similar to those existing in Feres require the same result in this case. At the very minimum, however, it would seem clear that Feres precludes a decision that merely because a patient can sue his physician for malpractice in Indiana, a prisoner must be given a like remedy under the Act.

The second “like” situation noted by the majority in which Indiana creates analogous private liability involves the right of an inmate to sue a jailer in his private capacity for negligence causing injury. Regardless of the problems created by a scheme of Government liability made to depend on state recognition of jailer liability,6 this analogous “private” situation, under the Feres doctrine, is also but one factor to be considered in deciding whether there are “like” circumstances which render the Government liable. The mere existence of state recognized private liability in the jailer-inmate situation is not controlling for the same reason physician liability to a patient is not. In neither case is there parallel private liability.7 Other important circumstances peculiar to the Government-prisoner relationship must be considered.

.II.

The majority opinion examines the Feres opinion in some detail, and concludes that the “other circumstances” which led the Supreme Court to exclude soldier claims from the coverage of Tort Claims Act despite (a) certain similarities to “like” situations in which private liability is recognized, (b) legislative history indicating deliberate omission of such an exception, and (c) literal import of the statutory language, are not present in this case.

The Supreme Court has indicated with indisputable clarity that the Feres decision must be explained in terms of the:

“ * * * peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty -x- * -x- » (italics added.) 8

Although considerations of discipline applicable to the Government-soldier relationship would seem to apply a fortiori to the Government-prisoner relationship, and extreme results might obtain if suits are allowed, the majority believes that Feres “does not require” a conclusion different from that which it has reached. This is because, initially the majority conceives of no reason why prison discipline should be adversely affected if the Government is made susceptible to prisoner actions. “We need not speculate” on that question, it says, because we have resort to the experience of states which permit similar actions, and “there is no indication that discipline has been impaired” in those states.

A threshold objection to this treatment of a difficult policy question is that state experience with statutes waiving sovereign immunity, especially as it relates to the particular matter of prisoner claims, is not a reliable indication of what the federal experience, will be with such claims. It is not unreasonable to sup*277pose that the federal and state prison populations differ substantially, owing to considerable differences in the nature of federal and state penal laws. Undoubtedly there are also marked differences between state and federal prison facilities and in the methods employed in the operation of the prison system which are pertinent to our inquiry. And in some states the doctrine of “civil death” operates to prevent prisoners from suing while they are in prison, although sovereign immunity does not bar actions brought after their release. Since this is true in New York, N.Y.Penal Law, McKinney’s Consol.Laws, c. 40, § 510; Green v. State, 278 N.Y. 15, 14 N.E.2d 833 (1938), affirming 251 App.Div. 108, 295 N.Y.S. 672 (4th Dept. 1937), reversing 160 Misc. 398, 290 N.Y.S. 36 (Ct.Cl. 1936); Glena v. State, 207 Misc. 776, 138 N.Y.S.2d 857 (Ct.Cl.1955), the New York “experience” with prisoner actions and prisoner discipline upon which the majority relies is no sure guide to the anticipated federal experience with actions brought by prisoners while they are confined, unimpeded by theories of “civil death.” See Coffin v. Reichard, 143 F.2d 443, 155 A.L.R. 143 (6th Cir. 1944), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945); Note, 63 Yale L. J. 418 (1954). It is not difficult to foresee the .use to which this remedy will be put by men anxious to relieve the monotony of prison life with the excitement of trials involving their guards and wardens. And it does not strain the imagination to recognize the encouragement these jaunts to the courthouse will have to the proliferation of this type of litigation no matter how lacking in merit the claims may be. What is to become of discipline if the Bureau of Prisons is required to shuttle prisoners back and forth? Indeed, the enactment of 28 U. S.C. § 2255 in place of habeas corpus in criminal proceedings (for federal prisoners) was prompted in the main by this important consideration. The court’s inability to investigate such questions, and the many possible differences between state and federal experience in this area, weighed heavily in this writer’s earlier dissent — in which I proposed that Congress, with its ample fact finding facilities, should be given the opportunity to undertake an extensive investigation into this matter.9 See Winston v. U. S., supra, at 274, n. 1.

*278A second objection is that we really have no idea what the state experience has been with these statutes, and with prisoner claims in particular. Reports of cases involving prisoner actions give no indication of the effect which the right to sue the state has on the administration of discipline in the correctional institutions involved. Moreover, the majority cannot derive evidence of state experience from a statement found in House Report 1287, which accompanied the bill (as incorporated into the Legislative Reorganization Act) later enacted- as the Tort Claims Act, that there were no indications of “detrimental or undesirable” effects from state laws waiving sovereign immunity.10 That statement was intended as a generalization of the experience of “a number” of states with general waiver of immunity laws. The Committee certainly was not saying that laws waiving sovereign immunity had no undesirable effects whatever. Furthermore, as we shall demonstrate in connection with another point,11 it is interesting that the Report also referred to states that did not permit prisoner actions, although they did permit the normal run of negligence litigation by other persons.

A third objection, closely related to the previous two, is that the experience of various states permitting prisoner claims is not alike; and the majority has no expertise by which to decide which of several states’ experiences is relevant to the federal situation.

Finally, it is significant that the majority chooses to dismiss the Government’s fears concerning prison discipline in a situation involving nothing more than a failure of prison medical authorities to diagnose a disease (the gravity of which was unknown to the prisoner), rather than in the situation posed by Muniz v. United States, supra, a companion case decided this day on rehearing. In Muniz (decided by reference to the Winston opinions), the facts plainly demonstrate that the Government’s fears are not wholly fanciful. Muniz claims that prison authorities operated his institution negligently in countless ways, which resulted in general unrest among the inmates leading to a riot in which he was injured. The complaint also alleges that prison guards negligently executed riot control procedures, leaving Muniz at the mercy of rioting inmates anxious for an opportunity to “take care” of him. A more vivid illustration of the extent to which a judge will be called upon to review every phase of prison administration under the present decision can hardly be imagined. Wholly aside from the burden placed upon the Government in defending this action,12 if the *279court finds that' the prison’s failure to conduct its affairs in a manner conforming to the court’s notion of due care13 led to an unreasonable risk of riot and injury to Muniz, must the prison authorities revise their manner of operation accordingly, or risk further costly litigation, although they disagree with the court’s theory of “due care” on the basis of their own experience and expertise ?14 And there were approximately 1000 assaults (inmate on inmate) in federal prisons during 1961. 3 Bureau of Prisons (Dept, of Justice), Basie Data 49 (revised ed. Dec. 1961).

We believe the majority does not comprehend the magnitude of the problem because it fails to recognize the distinctly unique situation caused by the confinement of human beings. Professors, sociologists, and penologists have reminded us of the tension-packed atmosphere which exists in prisons:

“ * * * [T]he vaunted loyalties of men in prison are apt to be nonexistent; exploitation rather than cooperation is the rule, since the conditions of a viable solidarity are missing. Faced with severe frustrations, together but yet apart, and ill-equipped by previous ' experience to live in harmony under compression, the inmates of the prison attempt to manipulate their captors, coerce and defraud each other, or withdraw into the sullen apathy of ‘sweating out their time.’ ” Sykes, Crime and Society 112 (Princeton, 1956).15

How then can the court under these circumstances thrust liability on the Government before Congress has had an opportunity to examine the nature and extent of that liability?

Turning to the other circumstances which persuaded the Supreme Court in Feres that soldier claims were not meant to be included in the coverage of the Tort Claims Act, the majority recalls that Court’s reluctance to believe that Congress intended to make Government liability contingent upon state law since the Government-soldier relationship is “distinctly federal” in nature. Interpreting *280this to mean that relationship does not “in any sense depend on the operation of state law,” the majority finds this consideration “inapplicable to the case at bar,” because statutes relating to the penal system “provide that certain of its operations shall depend on state law.” We think the majority misreads the reference made to the “distinctively federal” Government-soldier relationship in Feres. As the quotation from United States v. Standard Oil Co. of California, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947) on page 143 of 340 U.S., on page 157 of 71 S.Ct. of Feres makes clear, the Supreme Court was merely indicating that fundamentally the source of all law governing that relationship is federal. The court was not suggesting that Congress ■ has never “applied” state law (in the sense of adopting state rules) to certain incidents of the relationship. In fact, Article 134 of the Uniform Code of Military Justice, 10 U.S.C.A. § 934, does make provision for application of state law to some incidents of the Government-soldier relationship. See Assimilative Crimes Act, 18 U.S.C. § 13; Snedeker, Military Justice 183, 184 (1953). The application of state law to the Government-prisoner relationship referred to by the majority is of the same order. In neither situation does this practice render the relationship less distinctively federal in nature. Thus, insofar as the Supreme Court was reluctant to find that Congress intended to make Government liability depend on state law in Feres, the considerations are equally applicable here.

The majority admits that the Supreme Court’s statement that it “makes no sense” to provide that geography should select the applicable law governing liability for injuries sustained by a soldier —who may be stationed anywhere at the will of his superior officers, is equally applicable to the prisoner situation. But the majority finds this argument unpersuasive because no one chooses his location because of the relative merits of a particular state’s tort law. If the Supreme Court was concerned with the soldier’s lack of “choice,” its argument would not be persuasive. But we believe the Supreme Court was referring to something else.

When Congress was deliberating over the Tort Claims Act, it was faced with the troublesome question whether it was necessary to construct an entire body of federal negligence law, or whether it would be unjust to claimants to take the easier course, and allow Government liability to be determined according to the existing reservoir of state law. Since a person normally looks to that state law for a definition of his rights against all other persons, Congress probably thought that it would not be unfair if he were allowed to recover for federal government negligence “in the same manner and to the same extent” as he could recover against any other tortfeasor. Apparently Congress preferred the advantages of applying state law to other considerations which suggest the desirability of a uniform federal obligation for the tortious acts of its employees.

However, as explained in this writer’s earlier dissent,16 this notion of “fairness” is not applicable in the case of soldiers or prisoners because the Government directs them to reside in a jurisdiction which it chooses. Thus, the Government is'in a position to control the state law applicable to injuries which it may negligently inflict. It is this factor which undoubtedly led the Supreme Court to declare it .“makes no sense” to provide that a soldier’s right to recover for his injuries should depend on geographical circumstances — which the tortfeasor controls. The inherent difficulties and morale problems which this creates in the operation of a system devised for the benefit of victims of Government negligence which is supposed to operate with equality, persuaded the Supreme Court, in addition to other considerations, that Congress did not intend such a result. *281And this applies with no less force to prisoners.

Furthermore, the majority’s argument that inequality which results from application of various state laws is no more disadvantageous to a prisoner than to anyone else is unconvincing. It would seem that all states recognize private liability in almost all situations in which a person may be injured as a result of the federal Government’s “operational negligence,” so that the Government will also be liable. But the Government’s liability to prisoners, under the rationale of the majority opinion, depends upon the existence of jailer liability in the state where the prison is located. In many states such liability is not recognized. See Annotation, 14 A.L.R.2d 353, 356 (1950). As a practical matter, this means that the right of a federal prisoner to recover is made dependent upon the magnanimity of the Director of Prisons, who decides whether a prisoner will be ■confined in a particular state.

The strange result which occurs in a state that does not recognize jailer liability, but does permit suits against the sovereign, provides further indication that Congress did not intend to make prisoner claims subject to the Tort 'Claims Act. For in such a state, e. g., Illinois17 federal prisoners18 will have no remedy against the Government, although state prisoners have a remedy ■against the state.19 It is difficult to perceive how this result can be avoided, unless the courts are willing to consider a ■state as a “private person,” within the meaning of sections 2674 and 1346(b). If that interpretation is adopted the federal government will be liable “in the same manner and to the same extent” as state governments — a result unlikely to have been intended by Congress.

Finally, the majority notes that the Supreme Court in Feres was impressed by the fact that a comprehensive scheme of compensation (regardless of fault) existed for the benefit of soldiers, and that the Tort Claims Act failed to contain any provision adjusting it to the tort remedies it created. Since the compensation system for prisoners was more limited than that provided for soldiers in 1946, when the Tort Claims Act was passed (although the prisoner compensation system has been expanded considerably by recent legislation), the majority argues that the lack of any such provision cannot be as significant here as it was in Feres and that insofar as prisoners are concerned, the tort and compensation remedies are meant to be cumulative. But in groping for this straw, which the Supreme Court hesitated to rely on, see Feres v. United States, supra, 340 U.S. at 144, 71 S.Ct. at 158, the majority overlooks the Supreme Court’s emphasis on the particular suitability of an administrative compensation scheme to the military situation:

“A soldier is at peculiar disadvantage in litigation. Lack of time and money, the difficulty if not impossibility of procuring witnesses, are only a few of the factors working to his disadvantage.” Id. at 145, 71 S.Ct. at 158.

This is certainly no less true of the prisoner, who, in addition to financial handicaps affecting his ability to maintain a successful civil action, is likely to suffer disadvantages because of his status and the nature of his complaint. If the prison authorities will not permit a prisoner to leave his institution even when his case is reached for trial, in order to avoid the discipline problems previously discussed, supra, at page 276,20 he will face a major handicap be*282cause of his inability to give testimony in court on his own behalf. He will then have to fall back on the use of his own deposition to establish his case. We are sophisticated enough to know that his deposition testimony is not an adequate substitute for his appearance on the witness stand. Any experienced trial judge will attest to the truism that nothing can take the place of the plaintiff’s graphic demonstration of the extent of his injuries. Furthermore, we must recognize that the prisoner under these circumstances will be required to rely entirely on his attorney who is deprived of his client’s ready assistance in preparation for trial and his aid during the trial. We believe that considerations such as these, which indicate that an administrative compensation scheme may be the only way to provide a prisoner with adequate relief, lend considerable support to our position that Congress never intended that the Tort Claims Act would extend to prisoner claims.

Of course, we do not suggest that the considerations which persuaded the Supreme Court to exclude soldiers from coverage of the Act are identical to those relevant in the instant case involving prisoners. But, the considerations are so similar that Feres has been held to control, by analogy, in decisions by the two other Courts of Appeals that have passed on the issue. When it is recalled the Supreme Court found that Congress did not intend to include soldier claims (a) despite the fact that in almost all of the bills proposing tort claims legislation submitted before the enactment of the present law there were provisions expressly excluding soldier claims — a strong indication of deliberate omission of a similar provision in the enacted statute; and (b) despite the fact that Congress did expressly exclude some claims by servicemen, 28 U.S.C. § 2680 (j), the similarity with the Feres case should be dispositive here where there is no indication of such legislative history concerning prisoners.

It seems to us that the majority’s argument, in essence, is not that Feres lacks similarity to the present case, but that subsequent cases construing the Act, have cast doubt on its value as precedent. Thus, it is said that “expressions of doubt” found in the Feres opinion (“[u]nder these circumstances, no conclusion can be above challenge * * * ”) must be interpreted as “a strong warning of the impermissibility of finding exceptions to the statute * * which do not depend upon the grounds advanced in Feres.”

But Feres indicates no such principle of construction. It established the principle that despite the doctrine of expressio mius est exchtsio alterius relied upon by the majority, sound jurisprudence may require a conclusion that there are implied exceptions. There is nothing in Feres which suggests that sound jurisprudence may not take into account other compelling circumstances of a particular case, unless they are identical with the circumstances existing in Feres. To be sure, subsequent Supreme Court decisions demonstrate no readiness to create exceptions with abandon. But in Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (forest fire fighters) and in Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (lighthouse keepers), the Supreme Court dealt with situations in which parallel “private” liability was obvious, and in which no compelling circumstances required a judicially implied exception as in Feres, or the exception which we believe necessary in the instant case.

III.

Is there any legislative history, however remote, which indicates that Congress intended to include prisoner claims within the scope of the Tort Claims Act ? The first opinion offered none. The second opinion, however, referring to a New York statute waiving sovereign immunity, and to New York “practice” which permits prisoner actions against the state, suggests that there is evidence which “tends to support a broad application of the Act and, more specifically, *283the coverage of federal prisoners.” The ■in banc opinion states:

“The House Report on the Federal Tort Claims Act * * * took express note of the New York statute and of the state’s experience with it and concluded that ‘[s]uch legislation does not appear to have had any detrimental or undesirable effect.’ ” 21

The majority, alluding to a sentence in which the Committee notes that the New York statute was different from the proposed federal bill in several respects, concludes that the Committee meant to convey an impression that “in all other respects the New York legislation was the same * * * ” and that:

“Since the House Committee examined the practice under the New York law, and made no exception for claims by prisoners, it may safely be assumed that the intent was to encompass such claims.”

We believe that this assumption is not only unsafe, but that it is demonstrably erroneous.

House Report No. 1287, insofar as it deals with existing state law, reads as follows:

“State Laws
“It is pertinent to note in this connection that a number of the States have waived their governmental immunity against suit in respect to tort claims and permit suits in tort to be brought against themselves. Such legislation does not appear to have had any detrimental or undesirable effect. Thus, the State of New York, in 1929, by an act of its ■ legislature explicitly waived its immunity from liability for the torts of its officers and employees and consented that its liability for such torts be determined in accordance with the same rules of law as apply to an action against an individual or a corporation. That State legislation went much further than the pending bill, because no exception to liability and no maximum limitation on amount of recovery was prescribed (Laws of New York, 1929, ch. 467).
“In 1893 the Legislature of California enacted a statute permitting suits to be brought against the State on claims on contract or for negligence (California Statutes 1893, ch. 45, sec. 1, p. 57 [West’s Ann.Gov.Code, § 16041]).
“In 1917 Illinois permitted its court of claims to pass on all claims and demands, legal and equitable, ex contractu and ex delicto 'which the State as a sovereign commonwealth should in equity and good conscience discharge and pay’ (Laws of Illinois, 1917, ch. 325 [S.H.A. ch. 37, § 432]).
“In Arizona, in 1912 — its first year of statehood — a statute was enacted authorizing suits to be brought against the State on claims in contract or for negligence (Arizona Laws of 1912, art. I, ch. 59 [A.R.S. § 12-821 et seq.]).”

It seems self evident that the Committee’s purpose in making the above reference to existing state law was threefold:

1. to indicate that “a number” of states had already passed general statutes waiving sovereign immunity in respect of tort claims ;
2. to express its judgment that, taken as a whole, such legislation did not appear to have been undesirable; and
3. to give several examples of existing legislation, including the statutes found in three of our most populated states (N. Y., Ill., Cal.) and a statute in one of the least populated (Arizona); and to point out that the proposed federal bill did not even approach the New York statute in the extent of waiver, although it did adopt *284the New York (and common law) rule that Government liability would be determined by rules of law applicable to private persons.

The reference to state legislation was general. No attempt was made to compare the four illustrative statutes, or to examine particular provisions. No reference was made to judicial decisions construing any of the statutes; and we believe none is implied.

More particularly, the Report does not refer to any New York provision expressly permitting prisoner claims (for there was none), or to judicial decisions construing the general New York statute to permit them. In short, there is no language substantiating the majority’s assertion that the Committee “took express note of the state’s * * * experience” with prisoner claims; and there is not even the slightest indication that the Committee was aware of this New York “practice.” Of course, if the Committee was not aware of the practice, there is no basis for the majority’s conclusion that the proposed bill intended to “encompass” such claims.

Moreover, we note that the Report did not refer merely to the New York statute, but to statutes in Arizona, California and Illinois; and that the reference to the New York statute was the same as that made to the others. It is clear that Arizona and California have at no time permitted prisoners to sue those states for the negligence of prison authorities, despite their statutes waiving sovereign immunity. See City of Phoenix v. Lane, 76 Ariz. 240, 263 P.2d 302 (1953), overruled on other grounds, Lindsey v. Duncan, 88 Ariz. 289, 356 P.2d 392 (1960); State v. Sharp, 21 Ariz. 424, 189 P. 631 (1920); People v. Superior Court of City and County of San Francisco, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R.2d 919 (1947) {in banc) (state not liable for negligence of employees engaged in purely governmental functions); Grove v. County of San Joaquin, 156 Cal.App.2d 808, 320 P.2d 161 (Dist.Ct.App.1958); Collenburg v. County of Los Angeles, 150 Cal.App.2d 795, 310 P.2d 989 (Dist.Ct.App.1957); Bryant v. County of Monterey, 125 Cal.App.2d 470, 270 P.2d 897 (Dist.Ct.App.1954.); Oppenheimer v. City of Los Angeles, 104 Cal.App.2d 545, 232 P.2d 26 (Dist.Ct.App.1951) (operation of jail, prison or reformatory is a purely governmental function). Therefore, if' we assume, as the majority does, that the Committee was aware of the New York “practice,” it must have been equally aware of the Arizona and California “practices.” It is inconceivable that the Committee intended to incorporate both into the federal bill. And it would seem that if the Committee was aware of the-conflicting “practices” and meant to adopt the New York-Ulinois approach rather than that of Arizona and California, it would have made this choice clear in its Report.22

IV.

The majority is unimpressed by the fact that Congress continues to pass private bills for the relief of injured prisoners. The panel opinion dismissed this practice on the theory that private bills are “passed out of courtesy to the sponsoring Congressman without the deliberation attending the passage of a Public Law.” The in banc majority suggests that the bills represent nothing more than a congressional “acknowledgment of the fact that the courts have-refused to entertain” prisoner actions; and it maintains- that “nothing presented' indicates that Congress approved, rather than merely noted, the existing interpretation.”

However, we note that when Congress-adopted the Tort Claims Act, it simultaneously enacted another statute prohibiting any “private bill or resolution- * * * authorizing or directing (1) the-*285payment of money * * • * for personal injuries or death for which suit may be instituted under the Federal Tort Claims Act * * * ” 2 U.S.C.A. § 190g. Presumably, this legislation prohibits the House Committee on the Judiciary from introducing the proscribed private legislation “out of courtesy” to Congressmen; and theoretically, it would seem that Congress has forbidden itself to pass such bills. Otherwise, section 190g would appear to be meaningless. Yet private bills for injured prisoners are still processed in unabated number. See Winston v. United States, supra, 305 F.2d 274 n. 1, at 279 n. 14 (dissent). A reason given by the Committee for this is that “there is no way under the general law to compensate prisoners” who are injured. H. Rep. 534, cited in Winston v. U. S., supra. And in proposing Private Law 773, id. at 263 n. 18, the Committee referred to lower court opinions holding that prisoner claims may not be brought under the Tort Claims Act.

Although the majority asserts that this is a “necessary acknowledgment” because of section 190g, it is not clear what that statement means. Certainly the majority does not mean that when the Committee proposed Private Law 773, for example, it viewed two brief decisions by district judges in Tennessee and New York as constituting a definitive and final interpretation of the Act which it was bound to follow. The majority, by disregarding the unanimous decisions of no less, than 12 trial and appellate courts, amply demonstrates that it is not bound by considerably more authoritative precedent. Therefore, unless we are willing to assume that the House Judiciary Committee referred to those decisions pro forma,, in order to evade section 190g, it would seem that the Committee’s action must be taken as an indication of its agreement with the courts’ interpretation of the Act. Moreover, if the Committee did not agree with the decisions, it is difficult to understand why it proposes, and Congress continues to pass these private bills. And since this Committee proposed the Tort Claims Act in 1946, and has since been charged with the duty of processing private legislation in accordance with the 1946 legislative scheme, we think its interpi'etation of the Act is worthy of note.

Although the majority would ignore this “subsequent legislative intention,” we think that in the absence of any shred of legislative evidence to the contrary, it should be considered, together with other circumstances previously discussed, as substantial evidence that the Tort Claims Act was generally understood to exclude prisoner claims. As the Supreme Court said in Feres:

“Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy.” 340 U.S. 138, 71 S.Ct. 155.

We would affirm.

. The eases are cited in the panel dissent, Winston v. United States, 305 F.2d 258 (2d Cir. 1962).

. Similarly, the admonition that the Tort Claims Act must be given a “liberal construction consistent with the broad purpose underlying its enactment,” does not ipso facto answer the present question. We agree without hesitation that the statute’s purpose should be effectuated by interpretation consonant with it. But “liberal” does not mean that the Act must be given unlimited scope, and that we must abandon all doubt to the contrary.

. Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), reversed sub nom. Feres v. United States, supra.

. Feres v. United States, supra, 340 U.S. at 142, 71 S.Ct. at 157.

. Brooks v. United States, supra, 337 U.S. at 53, 69 S.Ct. at 920.

. See 280, infra.

. Moreover, not all states which recognize jailer liability impose liability on a supervisory employee, e. g., a sheriff, for acts of a subordinate' — -the parallel private liability to which the Act might refer. See Annotation, 14 A.L.R,.2d 353, 359 (1950).

. United States v. Brown, supra; Feres v. United States, supra, 340 U.S. at 146, 71 S.Ct. at 159.

. The imposition of liability on the Government for the negligent injury of a prisoner before Congress has had an opportunity to explore how much litigation will flow from its own penurious nature in not providing sufficient funds for the operation of old penal institutions and for the construction of new ones is a dangerous adventure. From an article by James V. Bennett, Director of the Federal Bureau of Prisons for more than 25 years and long recognized as one of the leading and most progressive prison administrators in the country we learn:

“The prisoners in Federal institutions have increased by 35 per cent during the postwar period * * •
“* * * [B]ut the courts continue to send men to prison in an ever-engulfing stream. The administrator must find the space somehow. In our Atlanta penitentiary eight and ten men are now occupying cells intended for four. The single cells' each hold two men. Beds are strung closely together in dingy basement areas. And prisoners still arrive daily.
“Although the prison warden may find a place, however unsatisfactory, for the prisoners to sleep, the rest of the prison facilities fall hopelessly behind. Men stand in line at the toilets and washbowls. They go to the dining room in shifts; the dining room of the Atlanta penitentiary is in continuous use throughout the day. But the effects of overcrowding are even more destructive in terms of the prison’s purpose in salvaging men. The classrooms cannot accommodate all the men who need even basic education. The shops, industries, and maintenance work of an overcrowded prison cannot provide jobs for all.
“Overcrowding means idleness, and in some prisons as many as fifty per cent of the prisoners can only sit vacantly in their cells or mill aimlessly in the prison yard. What should be a time for preparation in anticipation of a fresh start in life turns out instead to be a stultifying, soul-deadening interim. And yet the prison warden is told, when such men leave prison and return again to crime, ‘You failed to rehabilitate them!’ The warden was never given a chance.
“Most of the wardens I know are charged with running an overcrowded prison. *278And most of the wardens I know are nervous men. They pace the floor in their offices. They order the steward to put more meat in the stew. They tour the prison daily, and concealing their anxiety, search the faces of the men.
“With the aid of their skimpy staffs, they cam, try only to keep the lid on. But experience tells them it is only a matter of time. It may be today, or tomorrow. It is no accident that the decade of the 1950’s has seen the most overcrowding in the history of American prisons — and also the most unrest, violence and disorder among American prisoners. In the first three years of the decade there were more destructive prison riots than in the previous fifty years. The unrest broke out again in 1959, raged for a time, and then subsided.
“American prison systems are now trying desperately to construct enough new facilities to contain and treat the mounting prisoner populations. But the present rate of prison commitments suggests that the effort is not enough. Prison populations continue to multiply faster than prison facilities. Despite a rise in the-number of prisoners that should warrant the construction of a new institution annually, the Federal Prison System for example has been authorized only one new institution since 1940.” Bennett, Of Prisons and Justice (1961).

. The text of the Report, insofar as it deals with state legislation, is set forth infra at p. 283.

. See p. 284, infra.

. Will prison guards, like traffic policemen, spend a substantial portion of their time in courts as witnesses if the majority-view prevails?

. If state law is to be applied, does this mean that state standards of due care are also to be used? If Georgia and Kansas have a guard ratio of 10 to 1, is it prima facie negligence for Atlanta and Leavenworth to have, e. g., a 30 to 1 ratio ?

. “We have confined in our prisons those who have been members of gangs on the outside, those who have raped, assaulted or killed, and those who simply stole cars or perhaps a letter from the mailbox. We have not found it possible to devise a system that loill assimilate all these people into a compatible community wholly free of discord and occasional violence. It is my feeling that since we have in such populations men who are chronic agitators, religious fanatics * *, and people attempting to endure unbearably long sentences, that we cannot expect to avoid occasional violence. Principal problems with assault cases involve those who have testified in court against other prisoners and thus need protection against bodily harm; supervision, separation and protection of sexual problem cases and gamblers who become involved and heavily indebted to fellow prisoners. We have had a considerable measure of success in holding such incidents to a minimum. Inmates are confronted by a sense of injustice and frustration, hopelessness for the future, sexual deprivations, and heavily laden tension factors which tend to produce violence in seemingly trivial situations. It is my honest opinion that prison officials can no more be guilty of inefficiency lohen disturbances or instances of violence occur than are outside law enforcement agencies when banks are robbed, people are consulted and stabbings occur on Saturday night. A prison community is made up of people who came from these outside situations.” Wilkinson, Assistant Director U. S. Bureau of Prisons, Report, Protection and Control of Prisoners (1962). (Italics added.)

. “Various kinds of riots and disturbances provide a more or less constant threat to established order within an institutional setting. Among those most frequently noted are mass escape attempts, sit-downs and other peaceful demonstrations, group assaults against certain officers or inmates, self-inflicted injuries and suicides, and expressions of violent rage against oppressive conditions.” Schrag, The Sociology of Prison Riots, 148 (1960).

. Winston v. United States, supra, 305 F.2d 274, n. 1.

. Bush v. Babb, 23 Ill.App.2d 285, 162 N.E.2d 594 (Ill.App.Ct.1959); see Note, 63 Yale L. J. 418, 422 n. 37.

. There is a federal prison in Marion, Illinois.

. Moore v. State, No. 4068, Ill.Ct.Cl. (1948).

. This may not be the case if judges issue writs of habeas corpus to secure their presence at trial. If they do, then we will encounter the discipline and administrative problems envisioned, supra, at page 276.

. Even the appellant Winston does not argue that the Committee examined the New York “practice,” suggesting only that it “must have been aware” of New York decisions interpreting the statute (Br. 6).

. If the Committee was not aware of these “practices,” and as we have already suggested there is no indication that it was, it cannot be seriously argued that by failing to write an express “prisoner exception” into the bill, the Committee indicated that it meant to adopt the New/ Xork rule.