Letter to Attorney General William French Smith Article, "The Suits That U.S. Aides Fear," by David Ranii, from the S. 1775, a bill to amend title 28 of the United States Code to provide for an exclusive remedy against the United States in suits based upon acts or omissions of United States employees, to provide a remedy against the United States with respect to constitutional torts, and for other purposes Department of the Treasury: Statement of Peter J. Wallison, General Counsel...... Letter to Senator Grassley, from Peter J. Wallison, General Counsel Jack Dickie v. United States of America, Wayne F. Speck, et al U.S. Merit Systems Protection Board, Office of the Special Counsel, letter to ADDITIONAL STATEMENT FOR THE RECORD Statement of Federal Executive and Professional Association. Page 207 215 217 237 245 246 FEDERAL TORT CLAIMS ACT FRIDAY, NOVEMBER 13, 1981 U.S. SENATE, SUBCOMMITTEE ON AGENCY ADMINISTRATION, COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 9:30 a.m., in room 357, Russell Senate Office Building, Hon. Charles E. Grassley (chairman of the subcommittee) presiding. Staff present: John Maxwell, chief counsel and staff director, and Lynda Ñersesian, counsel. OPENING STATEMENT OF SENATOR CHARLES E. GRASSLEY Senator GRASSLEY. I now call this hearing to order. We are here today to consider S. 1775.1 S. 1775 would make the United States the exclusive defendant in all common law and constitutional tort actions arising out of acts or omissions of Government employees acting within the scope of their employment. The situation that exists because these cases are not covered under the Federal Tort Claims Act is an unsatisfactory one from the perspective of all parties concerned. From the point of view of the Federal employee, the specter of personal lawsuits is harmful to morale, serves to chill vigorous and effective public action, and is inherently unfair to the individual attempting to fulfill his Federal mission. From the point of view of the plaintiff, the pursuit of a Federal official through a personal action is expensive, exhaustive, and unlikely to result in a collectible judgment. From the point of view of the Government, personal action entails expenditure of large resources, great complexity in the defense of the individuals, and complications such as the existence or assertion of conflicts of interest between multiple dependents or between the United States and one or more individual dependents. In introducing this legislation, I started from two basic premises: First, the average Government employee is competent and conscientious. He or she wants to earnestly carry out whatever function has been assigned. I think I can safely make such a generalization for, while several thousand constitutional tort claims actions have been filed against Government employees, only nine out of those several thousand have resulted in money judgments. 1 A copy of bill S. 1775 and excerpts from appendix 1, the Federal Tort Claims Act, appear in the appendix. (1) Second, where a plaintiff is successful, Government employees are ordinarily unable to pay substantial damages. Litigating a constitutional claim, is exhausting, expensive, and unlikely to result in a collectible judgment as the law currently exists. The fact that this legislation makes the United States exclusively liable has been misunderstood, I think, by some in that it is thought to undercut accountability. Again, if we measure accountability by the number of recoveries that people have gained in bringing suits against individuals, we see that there have only been nine awards out of several thousand actions that have been brought. But then, even though these suits do not result in the payment of money judgments, they do involve what can only be described as a debilitating experience for the Federal employee. There is much time spent in discovery, much money expended by the Government in providing for private counsel and much stress placed on the Government employee being sued. These employees must live day in and day out with the idea that they could be personally subjected to enormous judgments for doing essentially what they are paid to do. We have with us today a forest ranger from the Idaho panhandle who will share his experience of being sued for disposing of what he took pains to determine was abandoned property. To the extent that accountability is a concern and should be a concern, the bill provides that if a civil action or proceeding arising under the Constitution results in a judgment or any award against the United States, the Attorney General shall forward the matter to the head of the department or agency which employed the employee at the time of the act or omission for a further administrative investigation or disciplinary action. The legislation before us today would redefine the relationship between the Federal employee and the counterproductive burden now weighing on the shoulders of Government employees, the possibility of being held liable for a sizable judgment in a suit brought against him for the ways he or she perform a job. It would permit a citizen aggrieved by a Federal employee to sue the U.S. Government, a financially responsible defendant. Our first witness today is Mr. Edward C. Schmults, Deputy Attorney General with the Department of Justice. Mr. Schmults, we welcome you as I have privately, and we are interested in hearing what you have today. I want to thank you for your Department's help in working on this legislation before its introduction. STATEMENT OF EDWARD C. SCHMULTS, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE Mr. SCHMULTS. I am pleased to appear before this subcommittee in support of S. 1775, which would make the Government liable for constitutional torts and generally the exclusive defendant in all tort suits involving Government employees acting within the scope of their employment. The administration's views reflect continuity with the position of prior administration, which elicited broad bipartisan support. Case law eviscerating traditional doctrines of official immunity make congressional action imperative. |