Full opinion text
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, 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. 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. 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 Harlan 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. A qualified immunity would be dependent upon a myriad of factors and a particularistic assessment of the facts of each case, 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 defense 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). 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. 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. 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, far from undercutting Barr, Chief Justice Burger cited Barr and its antecedent, Spalding v. Vilas, 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. While § 1983 retains the absolute immunity of officials exercising power within the judicial or quasi-judicial ambit, 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, 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 defamations 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, 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. Although the Smithsonian has a substantial private dimension, we conclude that the nature of its function as a national museum and center of scholarship, coupled with the substantial governmental role in funding and oversight, make the institution an “independent establishment of the United States,” within the “federal agency” definition. 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.” Because the Smithsonian is a federal agency, its employees are “employee[s] of the government,” and the § 1346(b) action thus may lie. 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. 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. 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”. 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. 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. 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).” Another evidence of this centralizing impulse appears in the context of exceptions clause § 2680(a). 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, the reports of both chambers make the following statement: 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. 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.” The courts’ consistent sense of legislative intention is impressive even though the decisions fail to acknowledge the difficulty presented by the literal text. 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. 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. 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. . 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). . 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. . 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. . 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). . 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. . 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. . 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. . 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). . 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. . 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). . 416 U.S. 232, 246-247, 94 S.Ct. 1683 (1974). . 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. . 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. . 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). . 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). . 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). . App. at 6-8. . 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. ****** . 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. . Approximately 75% of the Institution’s operating funds come from federal appropriations. Hearings, supra note 3, at 253, 321. . 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. . 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). . 28 U.S.C. § 1346(b) (1970). . 28 U.S.C. § 2671 (1970). . 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. . 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. . 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. . 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). . See Wickman v. Inland Waterways Corp., 78 F.Supp. 284, 286 (D.Minn.1948). . 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). . 28 U.S.C. § 2680. Exceptions 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.” . Now 28 U.S.C. § 2679(a) (1970). . H.R.Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945); S.Rep. No. 1400, 79th Cong., 2d Sess., 33-34 (1946) (emphasis added). . 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. . 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). . 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.” . 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). . 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.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge, with whom J. SKELLY WRIGHT, Circuit Judge, joins, concurring: This case cannot plausibly be distinguished from Barr v. Matteo and surely we are not at liberty to disregard the Supreme Court’s unmistakable holding therein. Perhaps that is all that really needs to be said. Frankness, however, compels me to admit increasing difficulty in reconciling Barr with other strands of jurisprudence evolving on the amenability of public servants to suits for damages. I join in the disposition of this case, then, not out of any ability to divine the ultimate schematism of this area of the law, but because of the judge’s duty to abide controlling precedent. Few would suggest that public officers be made answerable in damages for good-faith errors in judgment, even when the result is exceedingly unfortunate. Fewer still would condone venally or maliciously motivated acts by public functionaries or their ofttimes appalling consequences. If recompense to. victims implicated no more than the purses of callous bureaucrats, there would be no need for official immunity, for the availability of some sort of good faith defense would suffice to separate the sheep from the goats. The problem is not nearly so simple, however, because a great deal more than monetary liability is at stake. The ease with which malice can be charged leaves open the possibility that even the conscientious public servant will be dogged by suitors. The mere prospect of a lawsuit may deter even the otherwise courageous official from the full and ardent discharge of altogether lawful duties, lest he become enmeshed in vexatious, though unfounded, litigation. When an officer thus deviates from whole-hearted conservation of the common weal, the public interest is to that extent disserved. The virtue of absolute immunity for public functionaries, as well as its sole justification, is that it safeguards against that measure of disservice. So it was that, with full appreciation of society’s weighty interest in fairness to those injured by improper manipulation of the levers of government, the Barr Court struck the balance on the side of averting litigation of defamation claims, whether ill-founded or not, arising from statements made in the line of federal duty. “[TJhere may be occasional instances of actual injustice which may go unredressed,” the Court said, “but we think that price a necessary one to pay for the greater good.” And, by extension of Barr, the generally accepted rule today is that the federal officeholder is totally immune to suit for damages attributed to any common law tort emanating from non-ministerial conduct within the outer perimeter of his official authority. Developments in related quarters, however, have introduced asymmetry in the field of official immunity. More than a century ago, by what is now 42 U.S.C. § 1983, Congress authorized civil actions by those deprived of federally secured rights through action under color of state law. Much more recently, notwithstanding the facial broadness of Section 1983, the Supreme Court has recognized immunities for state officers from civil damage suits thereunder. Unlike the invariably absolute immunity which Barr attaches to non-ministerial activity precipitating common law tort actions against those in federal service, immunity inherent in the functions of particular state offices for purposes of Section 1983 may be either absolute or qualified. More importantly, the process of formulating Section 1983 immunities has involved careful appraisal of the degree to which the operations of the office might be impaired by the specter of groundless suit, and a weighing of the assessment thereon against the remedial purposes of the statute. This category-by-category approach to immunity determinations, sensitive both to costs and to benefits, stands in sharp contrast to the Barr choice of immunity, which varies neither with the value of the premium it confers nor with the potential for harm it leaves in its wake. Of course, congressional specification in Section 1983 of a right to monetary relief rules out judicial interposition of absolute immunity, save only where a court may infer that Congress did not intend the statute to operate. On the other hand, damage actions against federal officials for transgression of common law norms, such as the defamation action that was Barr, do not encounter any manifestation of legislative will that might stifle judicial implication of unlimited and unqualified immunity. What brings this doctrinal consonance to the point of discord is the still-developing body of law shaping the suability of federal functionaries for damages charged to unconstitutional depredations. There, as in the situation Barr epitomizes, the judicial hand is unfettered by the legislature’s command; yet, since the Section 1983 immunity decisions have been deemed authoritative, the immunity in vogue in that area may be either qualified or absolute. The upshot is that one kind of judicially-fashioned immunity is available to federal officials in fending off damage suits founded on constitutional claims, and quite another — the Barr -type — to such officials in repulsing suits invoking the common law. The incongruity between immunities available to the same officer exercising the same functions, depending only upon the genesis of the legal standard by which his behavior is to be measured, strikes at the very foundations of the Barr rule. Many if not most constitutional torts have analogues in the common law. Thus the official who finds himself charged with a tort of each sort — a common posture — -may assert against the common law claims his Barr immunity, but the travail of litigation — which that immunity is designed to spare him — largely remains since he still has the burden of defending on the constitutional claim, albeit on the basis of qualified privilege. Friction with Barr runs even deeper, since the same commonsense assumption that underlies its holding suggests that far-sighted officials will guard against vexatious litigation rooted in the Constitution. One may thus question how much their resoluteness in job performance will be bolstered by Barr’s assurance of absolute immunity, which protects them only from the same annoyance couched in the principles of the common law. That constitutional rights have a status in our jurisprudence which common law rights can never attain does not satisfactorily explain the line presently drawn. If its justification lies in our greater willingness to risk exposure of public servants to personal liability when vindicating constitutional rights than when enforcing more pedestrian legal norms, one may wonder whether absolute immunity ought ever to be conferred in constitutional tort actions, as indeed it sometimes is. One may also suspect that in such actions, no less than in Section 1983 suits, the constitutional origins of the plaintiff’s claim may be less efficacious than the historical stature of particular immunities in the determination of whether the protection from suit is to be qualified or absolute. I speak to these matters to acknowledge a dilemma, and not in any endeavor to orchestrate the field of public-servant liability, in which the Supreme Court occupies by far the major role. It may be that further enlightenment will come from the Court’s forthcoming Economou decisions. In any event, my bounden duty at the moment is to follow Barr, in my view without any effort at reexamination of its holding or its rationale. For “[s]ave only for the exceptional cases where the proper decisional result is very clear, it is for the Supreme Court, not us, to proclaim error in its past rulings, or their erosion by its adjudications since.” . 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). . See notes 6-20 infra and accompanying text. . 360 U.S. at 571-576, 79 S.Ct. at 1339-1342, 3 L.Ed.2d at 1441-1444. . Id at 576, 79 S.Ct. at 1342, 3 L.Ed.2d at 1442. . See, e. g., David v. Cohen, 132 U.S.App.D.C. 333, 337, 407 F.2d 1268, 1272 (1969) (defamation, abuse of process and malicious prosecution) and cases cited therein; Berberian v. Gibney, 514 F.2d 790, 793 (1st Cir. 1975) (abuse of process); Peterson v. Weinberger, 508 F.2d 45, 52 (5th Cir.), cert. ndenied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975) (interference with contractual relations); Estate of Burks v. Ross, 438 F.2d 230, 234-236 (6th Cir. 1971) (negligence); Ruderer v. Meyer, 413 F.2d 175, 178-179 (8th Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969) (defamation and conspiracy); Sowder v. Damron, 457 F.2d 1182, 1184— 1186 (10th Cir. 1972) (intentional infliction of emotional distress). See generally K. Davis, Administrative Law of the Seventies, § 26.00-2 at 580 (1976); K. Davis, Administrative Law §§ 26.01, 26.04 at 871, 875-880 (1970 Supp.). Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 et seq. (1970 & Supp. V 1975), one who is injured by “the negligent or wrongful act or omission of any employee of the [Federal] Government while acting within the scope of his office or employment” has an action against the Government, 28 U.S.C. § 1346(b) (1970), and that remedy, where it obtains, is exclusive. 28 U.S.C. § 2679(a) (1970). But 28 U.S.C. § 2680(h) (Supp. IV 1974) exempts generally certain intentional torts from the operation of the Act. As a means of accommodating the antagonistic interests at stake in cases like that at bar, it has been urged that these exemptions be repealed, thus enabling the victim to recover from the Government but not the officer — who might then be the more susceptible to sanctions for misbehavior since the damage award would be coming out of his superior’s budget. See K. Davis, Administrative Law of the Seventies, supra, § 26.03 at 584-597. See also Davis, An Approach to Legal Control of the Police, 52 Tex.L.Rev. 703, 720 n.47 (1974). Congress has in fact taken a step in that direction by amending the Federal Tort Claims Act to permit recovery exclusively against the Government on claims of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” against federal investigative or law enforcement officers. Act of Mar. 16, 1974, Pub.L. No. 93-253, 88 Stat. 50, 28 U.S.C. §§ 2679-2680 (Supp. V 1975). The amendments as originally proposed would have extended to all federal employees, but were ultimately reduced to their present form. See Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendments: An Interpretative Analysis, 54 N.C.L. Rev. 497, 517 (1976). . What is now 42 U.S.C. § 1983 (1970) was enacted in 1871 in order to supplement preexisting criminal penalties with civil remedies. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475-76, 5 L.Ed.2d 492, 496-497 (1961); Developments in the Law — Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1155 (1977). Federal jurisdiction to entertain § 1983 actions is conferred by 28 U.S.C. § 1343(3) (1970). . The Court first addressed the issue in Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019, 1026-1027 (1951) (legislators immune from liability in damages when “acting in the sphere of legitimate legislative activity”). Earlier cases had not adverted to the possibility of such immunities. See, e. g., Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927). The Court has also construed § 1983 as affording absolute immunity to state judges. Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288, 294-295 (1967), and prosecutors, Imbier v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A qualified, “good faith” immunity under § 1983 has been extended to the superintendent of a state mental hospital, O’Connor v. Donaldson, 422 U.S. 563, 577, 95 S.Ct. 2486, 2494-2495, 45 L.Ed.2d 396, 408 (1975); members of a school board and other school officials, Wood v. Strickland, 420 U.S. 308, 321-322, 95 S.Ct. 992, 1000-1001, 43 L.Ed.2d 214, 224-225 (1975); the governor and other high state executive officers, Scheuer v. Rhodes, 416 U.S. 232, 247-248, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90, 103-104 (1974); and police officers, Pierson v. Ray, supra, 386 U.S. at 557, 87 S.Ct. at 1219, 18 L.Ed.2d at 296. . See note 7 supra. . Compare, e. g., Imbler v. Pachtman, supra note 7, 424 U.S. at 424-A25, 96 S.Ct. at 992, 47 L.Ed.2d at 140 (threat of suit “would undermine performance of [a prosecutor’s] duties” because of 'the frequency with which a disgruntled defendant would “transform his resentment . . . into the ascription of improper and malicious” motives), with Wood v. Strickland, supra note 7, 420 U.S. at 320, 95 S.Ct. at 1000, 43 L.Ed.2d at 224 (“absolute immunity [is not] justified since it would not sufficiently increase the ability of school officials to exercise their discretion ... to warrant the absence of a remedy”), and Scheuer v. Rhodes, supra note 7, 416 U.S. at 243, 94 S.Ct. at 1690, 40 L.Ed.2d at 100 (“[fjinal resolution of [the immunity] question must take into account the functions and responsibilities of these particular defendants . . ., as well as the purposes of 42 U.S.C. § 1983”). . See Scheuer v. Rhodes, supra note 7, 416 U.S. at 243, 94 S.Ct. at 1690, 40 L.Ed.2d at 100. . See, e. g., Pierson v. Ray, supra note 7, 386 U.S. at 554, 87 S.Ct. at 1218, 18 L.Ed.2d at 295; Tenney v. Brandhove, supra note 7, 341 U.S. at 376, 71 S.Ct. at 788, 95 L.Ed. at 1026-1027. . See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619, 625-626 (1971) (the “Federal question” whether Fourth Amendment rights have been invaded involves a claim independent of statute, “both necessary and sufficient to make out the plaintiffs cause of action”). Cf. K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 583-584 (noting that “[t]he Barr case applies to common law torts, and the Supreme Court in Bivens created a new federal common law tort”). See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1540-1543 (1972). . See, e. g., Apton v. Wilson, 165 U.S.App.D.C. 22, 31-33, 506 F.2d 83, 92-93 (1974); Black v. United States, 534 F.2d 524, 526 (2d Cir. 1976); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972); Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1159 (4th Cir. 1974); Tritsis v. Backer , 501 F.2d 1021, 1022 (7th Cir. 1974); Jones v. United States, 536 F.2d 269, 271 (8th Cir. 1976); Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d 455, 463-464 (9th Cir. 1976); Mark v. Groff, 521 F.2d 1376, 1380 (9th Cir. 1975). . See cases cited supra note 13 and infra note 18. . See, e. g., K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 573; Second Circuit Note, 1975 Term, 51 St. John L.Rev. 251, 275-276 (1977). But see Economou v. United States Dep’t of Agriculture, 535 F.2d 688 (2d Cir. 1976), cert. granted, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977). . As indicated by such cases as Monroe v. Pape, supra note 6, 365 U.S. at 169, 81 S.Ct. at 474, 5 L.Ed.2d at 495, and Bell v. Hood, 327 U.S. 678, 679, 66 S.Ct. 773, 774, 90 L.Ed. 939, 940 (1946), an action grounded in the Constitution’s protections against unlawful searches and seizures may also contain allegations sufficient to generate a variety of common law claims, including trespass or unlawful entry, abuse of process, assault, false imprisonment, conversion and even intentional infliction of emotional distress. Cf. Dellums v. Powell,U.S.App.D.C. -, at -, -, 566 F.2d 167 at 175-176 (1977) and cases cited therein; Payne v. District of Columbia, 182 U.S.App.D.C. 188, 196, 559 F.2d 809, 817 (1977) (per Robinson, J.); Norton v. Turner, 427 F.Supp. 138, 140 (E.D.Va.1977). So might an actionable violation of the First Amendment involve similarly tortious activity. Dellums v. Powell, supra, at - of 184 U.S.App.D.C., at 194 of 566 F.2d & n.80. An outrageous instance of medical malpractice may, if practiced in a prison, infringe the Eighth Amendment. Cf. Estelle v. Gamble, 429 U.S. 97, 106-107, 97 S.Ct. 285, 292-293, 50 L.Ed.2d 251, 261-262 (1977). In limited circumstances, a breach of contract may implicate the Due Process Clause, cf. Cardinale v. Washington Technical Inst., 163 U.S.App.D.C. 123, 128, 500 F.2d 791, 796 (1974) as may a libel. Compare Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), with Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). . Common law tort claims have been joined with constitutional tort claims in a host of recent cases, including Dellums v. Powell, supra note 16, at- of 184 U.S.App.D.C., at 175-176 of 566 F.2d; Carter v. Carlson, 144 U.S. App.D.C. 388, 392-393, 447 F.2d 358, 362-363 (1971), rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); David v. Cohen, supra note 5, 132 U.S.App.D.C. at 335, 407 F.2d at 1270; Paton v. La Prade, supra note 13, 524 F.2d at 866; Roberts v. Williams, 456 F.2d 819, 828-829 (5th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971); Williams v. Gorton, 529 F.2d 668, 670-671 (9th Cir. 1976); Norton v. Turner, supra note 16, 427 F.Supp. at 140. See also Pierson v. Ray, supra note 7. . Cf. K. Davis, Administrative Law of the Seventies, supra note 5, § 26.00-2 at 583-584 (“the court should not have to say yes or no to such questions as whether one has a constitutional right not to be shot at by an officer, not to be hit in the jaw with an officer’s fist, not to have one’s property damaged by an officer, not to have one’s privacy invaded, not to have one’s reputation sullied”) (emphasis in original). . See, e. g., Apton v. Wilson, supra note 13, 165 U.S.App.D.C. at 29-33, 506 F.2d at 90-93. . See, e. g., Imbler v. Pachtman, supra note 7, 424 U.S. at 417-429, 96 S.Ct. at 988-994, 47 L.Ed.2d at 136-143; Scheuer v. Rhodes, supra note 7, 416 U.S. at 239-247, 94 S.Ct. at 1687-1692, 40 L.Ed.2d at 98-103; Apton v. Wilson, supra note 13, 165 U.S.App.D.C. at 29-30, 506 F.2d at 90-91. . Economou v. United States Dep’t of Agriculture, supra note 15. . Breakefield v. District of Columbia, 143 U.S. App.D.C. 203, 206, 442 F.2d 1227, 1230 (1970), cert. denied, 401 U.S. 909, 91 S.Ct. 871, 27 L.Ed.2d 807 (1971).
WILKEY, Circuit Judge (concurring du-bitante): While I concur in the judgment of this court, I do so with serious doubts about the present validity of Barr v. Matteo, the Supreme Court decision that the majority views as controlling on the question of executive immunity. For the reasons stated by the majority and amplified by my discussion in Part I, infra, I do not doubt that the absolute immunity afforded by Barr v. Mat-teo represents sound policy, as much now as it did when it was decided. However, in the various § 1983 cases that have intervened since Barr, the Supreme Court appears to have described the immunity generally available to executive officials in common law actions as being only a qualified immunity. As I will explain more fully below in Part II, infra, the Court’s persistence in this description, set out first in Scheuer v. Rhodes, and ratified twice thereafter, leads me to doubt whether the Court is still committed to the absolute immunity of Barr. Since it is the Court’s prerogative to overrule its own decisions, if it wishes, I join, although dubitante, in the judgment of this court in reliance upon Barr. I At first exposure the doctrine of absolute immunity for government officials in common law tort actions appears to be a harsh doctrine indeed. Someone who has incontestably been hurt as a result of the tor-tious conduct of a government official may be denied any compensation, regardless of the magnitude of the injury. Similarly, no matter how malicious an official’s action may appear to be, the operation of absolute immunity may preclude inquiry in a civil suit for damages into the reasonableness of his behavior, even if it appears that there will be no review of his action by other means. In terms of compensation denied and accountability foreclosed, absolute immunity may often seem distasteful in its rigidity. For these and other reasons, well-respected commentators have called for an overruling of Barr, so that for common law torts as is already the case for constitutional torts executive officials will have only a qualified immunity. Recognizing that the rule of absolute immunity imposes real costs, the relevant question becomes whether the benefits to be derived from the doctrine justify these costs. The Barr Court openly confronted this question and decided that the contribution of absolute immunity to “the effective functioning of government” outweighed the loss of litigant rights. As Justice Harlan concluded: To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. Critical to the balance struck by Barr was the view that the threat of personal liability hanging over an individual officer “might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” As Judge Leventhal has pointed out, it is as much a concern today that the possibility of personal liability will “chill” forthright government administration as it was in 1959, the year of Barr. If anything, with government regulation touching many more aspects of American life and with the stakes of regulation correspondingly more significant, there is even more reason today to expect “counter-attacks,” in Judge Leventhal’s phrase, against the officials who are charged with making the difficult and sensitive decisions of administration. It is argued, however, that precisely because so much can turn upon the actions of executive officials, then there must be civil damage suits available in order to hold them accountable for their conduct. To begin with, however, many of the actions by federal executive officials, which may give rise to common law torts, are subject to review and correction by courts under the Administrative Procedure Act and other statutory review provisions. In addition, the conduct of executive officials may be subject to a wide range of alternative oversight — by the press, by Congress, by the public, and by internal agency personnel. And, of course, the absolute tort immunity of Barr does not foreclose any possible criminal prosecutions of government officials who violate the law. If it is th