with whom REILLY, Chief Judge, and HARRIS, Associate Judge, join (dissenting):
Once again I am compelled to dissent from the holding of this court adopting a new rule of law respecting the sovereign liability of what in reality is the United States. For the sake of brevity, and since the present majority opinion is not substantially different from the vacated opinion, I incorporate my previous dissent in this case. See Graves v. District of Columbia, D.C.App., 287 A.2d 524, 525 (1972). I will, however, add the following comments.
This court has recently had occasion to reemphasize that the Constitution gives Congress power “ [t] o exercise exclusive Legislation in all Cases whatsoever, over [the District of Columbia] . . . .” (Emphasis supplied.)1 See District of Columbia v. Ray, D.C.App., 305 A.2d 531 (1973). This, I submit, is the constitutional rule of law to which this court and the circuit court must adhere. It is significant that the circuit court, while ignoring this constitutional provision, candidly recognized the legislative nature of its decision in Spencer v. General Hospital, 138 U.S. App.D.C. 48, 425 F.2d 479 (1969) (en banc). There the court stated:
Until the Congress addresses itself to a comprehensive effort to identify the *864foundations of liability more particularly, it will be for the courts here, as they are doing- elsewhere, to make these discriminating judgments. . . . [Id. at 52-53, 425 F.2d at 483-484.]
In Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971) (reversed in part on a ground not directly presented here), the court was apparently also under the impression that it was free to legislate for the District. It stated:
Nevertheless, until the legislature provides a substitute scheme for compensating the victims of police torts, common law principles . . . guarantee to people like appellant at least a day in court. [Id. at 400, 447 F.2d at 370.]
Whatever may be said for legislative judgments by the judiciary, even of a discriminating nature made “elsewhere”, the courts of the District of Columbia are circumscribed to a point of prohibition in this area of law.
I therefore believe that until Congress has clearly spoken on this matter, we are not free to pick and choose the provisions of the Federal Tort Claims Act we elect not to follow. The Act applies to the United States and until Congress speaks to the contrary, we should view the District and the United States as essentially the same sovereign and refrain from this admittedly legislative decision.
I note in passing that the circuit court’s unexplained refusal in Carter to accept for intentional torts the congressional policy expressed in 28 U.S.C. § 2680 2 is contrary to the expression of the full court in Spencer. To this extent Carter appears to have questionable validity since a division of that court could not properly overrule an earlier en banc decision. Cf. Davis v. Peerless Insurance Co., 103 U.S.App.D.C. 125, 255 F.2d 534 (1958).
Judicial disagreement and comment on this question continues. See Marusa v. District of Columbia, 484 F.2d 828 (D. C. Cir., Nos. 72-1027 and 72-1140, decided August 21, 1973). There the circuit court commented that my earlier dissent in this case “offers no policy considerations to support its. position in favor of such immunity.” Id., at 832. Such an observation misses altogether the thrust of my point that it is not for the courts to seek out and evaluate “policy considerations” for immunity in this type of case, and then rely upon a failure to find them as justification for a new rule of law. What the circuit court has done, and what this court now does, is to create sovereign liability where it is thought desirable simply because those making the judicial decisions presume to know what is the better rule and cannot understand why Congress, which is charged with the legislative responsibility, has not seen things their way.
The trial judge, in my mind, did not err in dismissing the complaint on the authority of Spencer. The subsequent, nonbinding decision in Carter is far too fragile a reed on which to rest the majority holding. I would affirm.
. See U.S.Const. art. I, § 8, el. 17.
. See Graves v. District of Columbia, supra at 525 of 287 A.2d (Nebeker, J., dissenting).