The United States is not entitled to recover indemnity from one
of its employees for whose negligence it has been held liable under
the Federal Tort Claims Act. Pp. 347 U. S.
206 F.2d 846, affirmed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The single question in the case is whether the United States may
recover indemnity from one of its employees after it has been held
liable under the Federal Tort Claims Act, [Footnote 1
] 60 Stat. 842, 28 U.S.C. §§ 1346, 2671
for the negligence of the employee.
Page 347 U. S. 508
Respondent, an employee of the United States, had a collision
with the car of one Darnell, while respondent was driving a
government automobile. Darnell sued the United States under the
Tort Claims Act. The United States filed a third-party complaint
against respondent, asking that if it should be held liable to
Darnell, it have indemnity from respondent. The District Court
found that Darnell's injuries were caused solely by the negligence
of respondent, acting within the scope of his employment. It
entered judgment against the United States for $5,500 and judgment
over for the United States in the same amount. The Court of Appeals
reversed the judgment against respondent by a divided vote. 206
F.2d 846. The case is here on writ of certiorari. 346 U.S. 914.
Petitioner's argument is that the right of indemnity, though not
expressly granted by the Tort Claims Act, is to be implied. A
private employer, it is said, has a common law right of indemnity
against an employee whose negligence has made the employer liable.
The Tort Claims Act, by imposing liability on the United States for
the negligent acts of its employees, has placed it in the general
position of a private employer. Therefore, it should have the
comparable right of indemnity against
Page 347 U. S. 509
the negligent employee which private employers have. United
States v. Yellow Cab Co., 340 U. S. 543
said to show the way. For there, we held that the United States
could be sued as a third-party defendant for contributions claimed
by a joint tortfeasor, though no specific provision of the Tort
Claims Act provided for such suits.
In that case, however, we were dealing with an established type
of liability, which was within the broad sweep of the claims for
which the United States had agreed to stand liable. Since the claim
was within the class covered by the waiver of sovereign immunity,
the Court refused to restrict its enforcement to separate actions
The present case is quite different. We deal not with the
liability of the United States, but with the liability of its
employees. The Tort Claims Act does not touch the liability of the
employees except in one respect: by 28 U.S.C. § 2676, it makes the
judgment against the United States "a complete bar" to any action
by the claimant against the employee. And see
The relations between the United States and its employees have
presented a myriad of problems with which the Congress over the
years has dealt. Tenure, retirement, discharge, veterans'
preferences, the responsibility of the United States to some
employees for negligent acts of other employees -- these are a few
of the aspects of the problem on which Congress has legislated.
Government employment gives rise to policy questions of great
import, both to the employees and to the Executive and Legislative
Branches. On the employee side are questions of considerable
import. Discipline of the employee, the exactions which may be made
of him, the merits or demerits he may suffer, the rate of his
promotion are of great consequence to those who make government
service their career. The right of the employer to sue
Page 347 U. S. 510
the employee is a form of discipline. Perhaps the suits which
would be instituted under the rule which petitioner asks would
mostly be brought only when the employee carried insurance. But the
decision we could fashion could have no such limitations, since we
deal only with a rule of indemnity which is utterly independent of
any underwriting of the liability. Moreover, the suits that would
be brought would haul the employee to court and require him to find
a lawyer, to face his employer's charge, and to submit to the
ordeal of a trial. The time out for the trial and its preparation,
plus the out-of-pocket expenses, might well impose on the employee
a heavier financial burden than the loss of his seniority or a
demotion in rank. When the United States sues an employee and takes
him to court, it lays the heavy hand of discipline on him, as
onerous to the employee perhaps as any measure the employer might
take, except discharge itself.
On the government side are questions of employee morale and
fiscal policy. We have no way of knowing what the impact of the
rule of indemnity we are asked to create might be. But we do know
the question has serious aspects -- considerations that pertain to
the financial ability of employees, to their efficiency, to their
morale. These are all important to the Executive Branch. The
financial burden placed on the United States by the Tort Claims Act
also raises important questions of fiscal policy. A part of that
fiscal problem is the question of reimbursement of the United
States for the losses it suffers as a result of the waiver of its
sovereign immunity. Perhaps the losses suffered are so great that
government employees should be required to carry part of the
burden. Perhaps the cost in the morale and efficiency of employees
would be too high a price to pay for the rule of indemnity the
petitioner now asks us to write into the Tort Claims Act.
Page 347 U. S. 511
We had an analogous problem before us in United States v.
Standard Oil Co., 332 U. S. 301
where the United States sued the owner and driver of a truck for
the negligent injury of a soldier in the Army of the United States,
claiming damages for loss of the soldier's service during the
period of his disability. We were asked to extend the common law
action of per quod servitium amisit
government-soldier relation. We declined, stating that the problem
involved federal fiscal affairs over which Congress, not the Court,
should formulate the policy.
The reasons for following that course in the present case are
even more compelling. Here, a complex of relations between federal
agencies and their staffs is involved. Moreover, the claim now
asserted, though the product of a law Congress passed, is a matter
on which Congress has not taken a position. It presents questions
of policy on which Congress has not spoken. [Footnote 2
] The selection of that
Page 347 U. S. 512
policy which is most advantageous to the whole involves a host
of considerations that must be weighed and
Page 347 U. S. 513
appraised. That function is more appropriately for those who
write the laws, rather than for those who interpret them.
The Act provides in pertinent part as follows:
"SEC. 1346. (b) Subject to the provisions of chapter 171 of this
title, the district courts, together with the District Court for
the Territory of Alaska, the United States District Court for the
District of the Canal Zone and the District Court of the Virgin
Islands, shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages, accruing on
and after January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission
"SEC. 2674. The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to
judgment or for punitive damages. . . ."
"SEC. 2676. The judgment in an action under section 1346(b) of
this title shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise to the
Though the legislative history of the Act is not too helpful on
this issue, such indications as there are point toward the result
we reach. The Court recently made an extensive review of the
history of the Tort Claims Act in Dalehite v. United
States, 346 U. S. 15
346 U. S. 24
As there explained, much of its relevant history appears in the
Seventy-seventh Congress, rather than in the Seventy-ninth
Congress, which enacted it. In the Seventy-seventh Congress, the
bill took substantially the form in which it was finally enacted by
the Seventh-ninth Congress.
At the hearings before the House Judiciary Committee of the
Seventy-seventh Congress, the question of the liability of
government employees arose. Mr. Francis M. Shea, then Assistant
Attorney General, explained the Government's position. In
discussing the provision for administrative settlement of small
claims (which is now 28 U.S.C. § 2672), Mr. Shea was questioned
concerning the clause under which acceptance of an award by the
claimant constitutes a release of all claims against the employee,
as well as against the United States. The present § 2672 has much
the same effect as § 2676, which makes a judgment against the
United States a bar to action against the employee. See
note 1 supra.
Shea's statements concerning the administrative settlement
provision therefore have some relevance to the issue in the present
"Mr. SPRINGER. I would like to direct your attention, Mr. Shea,
to line 19. Why do you provide this acceptance of the award as
constituting a bar to the claim against the employee? Is that the
intention of the provision, and what is the ultimate purpose of
"Mr. SHEA. . . . It has been found that the Government, through
the Department of Justice, is constantly being called on by the
heads of the various agencies to go in and defend, we will say, a
person who is driving a mail truck when suit is brought against him
for damages or injuries caused while he was operating the truck
within the scope of his duties. Allegations of negligence are
usually made. It has been found, over long years of experience,
that unless the Government is willing to go in and defend such
person, the consequence is a very real attack upon the morale of
the services. Most of these persons are not in a position to stand
or defend large damage suits, and they are, of course, not
generally in a position to secure the kind of insurance which one
would if one were driving for himself."
"If the Government has satisfied a claim which is made on
account of a collision between a truck carrying mail and a private
car, that should, in our judgment, be the end of it. After the
claimant has obtained satisfaction of his claim from the
Government, either by a judgment or by an administrative award, he
should not be able to turn around and sue the driver of the truck.
If he could sue the driver of the truck, we would have to go in and
defend the driver in the suit brought against him, and there will
thus be continued a very substantial burden which the Government
has had to bear in conducting the defense of post office drivers
and other Government employees."
"Mr. McLAUGHLIN. Have you considered the practice followed by
large corporations and railway companies with respect to defense of
employees who are joined as defendants in negligence actions?"
"Mr. SHEA. I should think that what ordinarily happens in the
case of an accident caused by a driver for a big corporation is
that suit is brought jointly against the two, and usually it is
satisfied by the corporation, and then ordinarily the corporation's
remedy against the driver is to fire him if he is negligent too
often. Ordinarily the corporations cover such risks by insurance,
which is paid for by the employer, I think."
"THE CHAIRMAN. Mr. Shea, you are discussing and directing your
remarks to the matter where, if a person is injured and files a
claim against the Government and the Government satisfies that
claim, that is the end of the claim against anybody?"
"Mr. SHEA. That is right."
"THE CHAIRMAN. What is the arrangement when the Government has
an employee who is guilty of gross negligence and injury results?
Is there any requirement that that employee should in any way
respond to the Government if it has to pay for the injury, in the
event of gross negligence?"
"Mr. SHEA. Not if he is a Government employee. Under those
circumstances, the remedy is to fire the employee."
"Mr. McLAUGHLIN. No right of subrogation is set up?"
"Mr. SHEA. Not against the employee."
Hearings before the House Committee on the
Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., pp.
9-10. See also
S.Rep. No. 1196, 77th Cong., 2d Sess., p.