Page Letter from Justice Department to Senator Abourezk, March 13, 1978, 114 131 Letter of Justice Department to Senator Abourezk, April 20, 1978, with answers to questions of March 21, 1978, on S. 21172 136 MISCELLANEOUS EXHIBITS Memorandum of Office of Legal Counsel, Justice Department, April 8, 1978, on retroactive application of S. 21172... 139 Excerpt from Final Report, Senate Intelligence Committee on Amending 145 Legislative History of 1974 amendment of section 2680(h) of Federal Tort 149 Senate Report on 1974 amendment of section 2680(h) of the Federal Tort 151 House floor debate on 1974 amendment of section 2680(h) of the Federal 158 "The Federal Tort Claims Act International Torts Amendment: An Inter- 164 212 H.R. 10439, amendments to the Federal Tort Claims Act (93d Congress)__ 215 COURT CASES AND BRIEFS Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)_ 220 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F. 2d 1339 (2d Cir. 1972). 263 Birnbaum v. U.S., 436 F. Supp. 967 (E.D.N. Y. 1977) 274 Avery v. U.S., 434 F. Supp. 937 (D. Conn. 1977). 298 Cruikshank v. U.S., 431 F. Supp. 1355 (D. Hawaii 1977) 308 Norton v. Turner, 427 F. Supp 138 (E. D. Va. 1977) _ . 315 330 2 See letter of April 10, 1978, at p. 52. AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT: S. 2117 THURSDAY, JANUARY 26, 1978 U.S. SENATE, SUBCOMMITTEE ON CITIZENS PROCEDURE OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittees met, pursuant to notice, at 9:30 a.m., in room 235, Russell Office Building, Hon. Howard M. Metzenbaum, chairman of the Subcommittee on Citizens and Shareholders Rights and Remedies, presiding. Present: Senators Metzenbaum and Thurmond. Staff present: Herman Schwartz, chief counsel of the Subcommittee on Citizens and Shareholders Rights and Remedies; Irene Emsellem, chief counsel, Subcommittee on Administrative Practice and Procedure; Charles Ludlam, counsel, Subcommittee on Administrative Practice and Procedure; and Patricia Hoff, counsel to Senator Wallop. Also present: Patricia Wald, Assistant Attorney General for Legislative Affairs. OPENING STATEMENT OF HON. HOWARD M. METZENBAUM, U.S. SENATOR FROM THE STATE OF OHIO, CHAIRMAN OF THE SUBCOMMITTEE ON CITIZENS AND SHAREHOLDERS RIGHTS AND REMEDIES Senator METZENBAUM. Today we open hearings on S. 2117, which amends the Federal Tort Claims Act with respect to constitutional violations by Federal officials. [A copy of S. 2117 will be found on p. 39 of the appendix. Proposed amendments submitted by Senator Eastland and the Justice Department follow the bill at pp. 44 to 51. S. 2117 as amended appears at p. 52 and the Federal Tort Claims Act as amended by S. 2117 as amended appears at p. 57.] We are pleased to welcome the Attorney General and others to this opening hearing. Our sole witness today will be Attorney General Griffin Bell, and our hearings will be conducted jointly with the Subcommittee on Administrative Practice and Procedure, chaired by the distinguished Senator from South Dakota, Senator James Abourezk. In the future, we will be scheduling additional hearings on the bill, at which representatives of the community and other Government agencies will be heard. Because the bill is still in the process of (1) being modified by the Department of Justice, it seemed appropriate to defer such testimony until the Department's final product is available for consideration. The bill has been prepared by the Department of Justice and is an administration proposal. Its most significant feature is this: in cases where Federal officials have violated a person's constitutional rights, that person will be able to sue the United States—which waives sovereign immunity for these matters-but not the individual official. This is the reverse of the present situation, as we understand it. The administration has proposed this bill because it will eliminate the need for the Government either to defend the individual employee or-where the official may be guilty of a criminal act-to obtain outside private counsel for him or her, at great expense. The Government has also stressed that such suits impair morale of Government employees. In return for removing the opportunity to sue the individual officials, the bill would provide for a remedy directly against the United States, and the possibility of some kind of administrative remedy. This bill has occasioned a great deal of criticism and discussion. Common Cause, the American Civil Liberties Union, and many others have raised many questions about the bill, both in general and with respect to details. A copy of two letters setting out some of these criticisms and questions has been provided the subcommittee and will be made a part of the record of this hearing. [The letters will be found on p. 70 and p. 74 of the appendix.] The fundamental issue comes down to this: if damages can no longer be exacted from individuals who violate constitutional rights, what alternative sanctions can be imposed on such officials? Are administrative remedies available and adequate? What remedies are available against former employees and presidential appointees? Does this bill create a risk that there will be no sanctions at all to deter grave constitutional violations, no matter how outrageous or unjustified they are? These are the most basic issues. In addition many questions have been raised about details of the bill. Our subcommittee submitted some of these questions to the Department on December 14, 1977, and received a set of replies dated January 20, 1978; they will also be made a part of the record. We appreciate the Department's cooperation in this matter and both the subcommittee questionnaire and the Department's replies will be made a part of this record. [The questions will be found on p. 80 and the answers on p. 90 of the appendix.] Mr. Attorney General, we are eagerly looking forward to your testimony. Senator Abourezk, who was to be here, cannot be here. But he does have some questions to which he would like written responses. And his opening statement will be inserted into the record at this point. [The questions submitted by Senator Abourezk on February 7, 1978 will be found on p. 104 and the answers returned by the Justice Department on March 13, 1978, will be found on p. 114 of the appendix. A sec 1 See letter of Attorney General to Vice President Mondale of September 17, 1977, at p. 26 in the appendix. ond set of questions sent by Senator Abourezk to the Department on March 21, 1978, appears on p. 131 and the Department's answers of April 20, 1978, appear on p. 136 of the appendix.] STATEMENT OF HON. JAMES ABOUREZK, U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA, CHAIRMAN, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PRO CEDURE I want to thank Chairman Metzenbaum for agreeing to hold this hearing on S. 2117 jointly with the Subcommittee on Administrative Practice and Procedure. Although the bill was referred to the Citizens Rights Subcommittee, of which Senator Metzenbaum is Chairman, the Administrative Practice Subcommittee has substantial expertise and interest in this area. I look forward to working closely with Chairman Metzenbaum during the consideration of S. 2117. S. 2117 is one of the most significant pieces of legislation to be considered by the Senate Judiciary Committee this year. The bill proposes a fundamentaland potentially threatening-change in the system by which we hold executive branch officials accountable for violating the constitutional rights of American citizens. My intense interest in this bill results from a six-month investigation which the Subcommittee on Administrative Practice and Procedure has just completed on the Justice Department policy of hiring private legal counsel to represent Federal employees in civil suits alleging the violation of constitutional rights. This investigation will shortly result in the issuance by the subcommittee, probably on Monday of next week, of a 1,200 page staff report on this subject.' The staff report will explain in vivid detail one reason why the Justice Department is so interested in S. 2117. Specifically, major developments-some of which are not yet public knowledge-have occurred which jeopardize the Department's policy of hiring private counsel to represent Federal employees. As much as the Department has had headaches with its policy of hiring private counsel to defend Federal employees, S. 2117 as drafted is not the answer. As introduced S. 2117 would immunize Federal officials from being held accountable in civil suits for violating the constitutional rights of Americans. This would eliminate the Department's need to hire private counsel to represent Federal employees. Under the bill the United States-and not the Federal employee will be the defendant. While this might provide a tidy solution to the problem involved in hiring private counsel, it is at a cost I am unwilling to accept. I am frank to say that, as presently drafted, S. 2117 will do little to prevent a repetition of the lawlessness by Federal employees disclosed over the past several years, and, might, in fact, encourage it. The major problem with the bill as drafted is that in immunizing Federal officials from any accountability through civil actions, S. 2117 substitutes no effective alternative system of accountability. Instead, the bill relies on civil service disciplinary procedures which have proven to be so inadequate and ineffectual in the past. Perhaps if these civil service disciplinary proceedings had been adequate and effective, there would be no need for this bill today. At a minimum, therefore, the basic elements of an effective disciplinary procedure must be included in the bill. My opposition to the bill as drafted is tempered by the fact that the Justice Department has demonstrated its sensitivity to the threat posed by the existing language of the bill and is apparently willing significantly to amend the bill. The Department has been open to suggestions for amendments and has met on a number of occasions with individuals concerned about the bill. The Department has carried on these discussions in good faith and I have every expectation that these meetings will produce amendments which will alter the basic thrust of the bill. I do not want to intrude on these discussions-which are still going on—but I do want to outline the types of amendments which I would support. First. it is clear to me that the present civil service procedures must be strengthened. 1 See "Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Suits," Staff Report of the Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, May 1978. The Civil Service Commission has under consideration various proposals, parts of which could be included in S. 2117. One such measure, proposed by the Administration would split the Commission into two entities, one of which would regulate employee conduct. The proposals are for this latter agency to conduct disciplinary proceedings in which aggrieved parties have substantially more rights to participate. Proposals for this type of fundamental reform will take some time to draft and to become law. However, as part of consideration of the Tort Claims Act Amendment I would expect the Administration to commit itself to a basic framework to strengthen civil service disciplinary proceedings as well as assurances that the Administration will join with Congress in establishing a comprehensive accountability mechanism. The necessity to balance the immunity provisions in S. 2117 can not await that process. Some language-however brief-which will guarantee that existing civil service proceedings will, in fact, be instituted whenever a Tort Claims Act suit is filed for constitutional torts is essential to this bill. In addition, Civil Service disciplinary proceedings should be made to extend to any violation of the constitutional rights of Americans by a Federal employee. Finally, in a disciplinary proceeding, aggrieved parties must be given the right to participate and to appeal any ruling which does not impose sanctions on Federal employees responsible for violating constitutional rights. I am delighted to hear the At torney General say in his opening statement that he is "personally agreeable" to an amendment along these lines. I am sure that with the Department's assistance such an amendment can be drafted." Second, for Federal officials for whom civil service disciplinary proceedings are not available or appropriate, plaintiffs must be given the choice either to sue the government under the Tort Claims Act or to sue the employee in his individual capacity. Civil Service proceedings, for example, are not available for former government employees and are not appropriate for high level Presidential appointees. Under the amendment I suggest a plaintiff would not be able to join the United States and the employee as co-defendants but would have to make an irrevocable choice of which to sue. The Justice Department should be given clear authority to represent Federal employees who are sued in their individual capacity. It is my understanding that few plaintiffs would choose to sue such Federal employees in their individual capacity because the likelihood of recovering damages from the employee is substantially less than recovering from the government. I had determined two other amendments to be essential and I understand that the Department has agreed to them during the course of its discussion on the bill. One is to eliminate a "good faith" defense on the part of the Government. The other would allow class action suits and authorize the award of attorneys fees to plaintiffs. One other area that needs to be addressed is the level of minimum damage which can be recovered by a successful plaintiff. With amendments along the lines I suggest, I can see some merit in the bill. At present plaintiffs are often unable to recover damages because Federal employees can raise a defense of qualified "good faith" immunity. And, as I have mentioned of the Department's present program of hiring of private counsel is in real jeopardy. Let me close by saying that I am sympathetic with the need to defend Federal employees who responsibly and vigorously perform their duties. It is also a good policy-as the subcommittee staff report will confirm to avoid the problems created by the Department's hiring of private legal counsel. In pursuing these two objectives, however, one must remember that the recent deluge of civil suits against Federal officials and the evolution of the Department's policy of hiring private counsel to defend these suits are direct consequences of past widespread government lawlessness. In attempting to mitigate this situation we must guard against encouraging the opposite result. It would be both ironic and tragic for us to comfort and encourage Federal employees who intentionally violate the constitutional rights of Americans in our concern over the plight of innocent Government employees harassed by civil suits. Clearly, this bill must ensure the accountability of officials by providing effective safeguards against abuse." 2 See amendment at p. 49. See p. 48 of the appendix. 4 See p. 48 of the appendix. 5 See recommendation of the Senate Intelligence Committee at p. 145 in the appendix. |