Elimination of Deterrence

Most serious of all, the dramatic loss of deterrence in S. 1775 affects all Americans and not simply victims of constitutional violations. The current law creates a significant incentive for compliance with constitutional rights because individual federal employees have a substantial fear of having to pay judgments and attorneys' fees in lawsuits against them. That deterrent has been wholly eliminated by making the United States exclusively liable and by failing to include anything comparable to replace it. As a result, S. 1775 creates a significant disincentive to obey the Constitution.

It is a well recognized principle of tort law, and indeed one of its aims, to deter violations and yet S. 1775 would provide nothing toward achieving that goal. In our view, the fear of large judgments and significant attorneys' fees is vastly overstated under the current situation, but to the extent that they create problems, they can be readily solved by obtaining liability insurance as other professionals do and indeed as policemen and, we have recently read, judges are doing, to guard against these contingencies.

Nonetheless, despite our views that the concerns of the Department are overstated on this matter, we might be willing to accept the loss of a dollar deterrent if meaningful alternatives were provided. In our view, the requirement in revised section 2679(f) (section 5(d) of S. 1775) for the Attorney General to refer matters back to the employee's agency, with nothing beyond that, is simply insufficient because it tips the balance wholly against deterrence.

As we see it, three essential elements are required in any meaningful substitute for the current deterrent of possible judgments for actual and punitive damages: (1) the right of the victim to initiate an investigation which cannot be terminated without adequate reasons; (2) the right of the victim to

participate in an appropriate manner in the investigation and subsequent disciplinary proceedings, if any; and (3) the right

of the victim to agency, and ultimate judicial, review if no punishment is meted out, or if the punishment is wholly inadequate for the violation.

While there is considerable room for debate as to how each

of these three disciplinary principles will be carried out, there is no room, in our view, for any proposal which does not include these basic elements. Indeed, the current system is so

seriously defective that the government will not even make public such basic information as who has been disciplined for known constitutional violations (principally, black bag jobs) and what type of punishment, if any, was meted out. S. 1775's reference over by the Attorney General will do nothing to change that situation and is for that reason wholly unacceptable.

We recognize that proposals to create meaningful alternatives are not easy to draft, but they can be done. We have worked with the Department of Justice in the past and with Committees of both Houses of Congress on this task, and we are more than willing to continue to do so. But let us be clear about one matter: the inclusion of meaningful alternative deterrence in the form of a different kind of internal agency disciplinary proceeding is the sine qua non for making the remedy for constitutional torts exclusively against the United States.

Other Points

We are pleased to note the amendments in section 4 that would alter 2679(d)(4) and (5) by providing significant relief from statute of limitations problems when the plaintiff erroneously sues an individual employee. This is a welcome advance in the cause of justice. Cases such as Wollman v. Gross, 637 F.2d 544 (8th Cir. 1980), which result in a total miscarriage of justice, simply cannot be allowed to continue, and we fully support these provisions.

On the other side, we find troubling the conclusive

certification by the Attorney General, not subject to judicial review, that an employee was engaged in conduct within the

scope of his employment.

That certification operates to create exclusive liability in the United States, but with the other unfair balances struck in the proposed amendments, may seriously prejudice tort victims. While we do not encourage the Committee to enact a provision which would permit extensive litigation over the scope of employment, we do believe that the right of the Attorney General, in effect, to decide for himself what constitutes the scope of employment is a further indication of the unfairness involved in this bill. We also believe that the scope of employment test ought to be extremely broad in this context, assuming the remainder of our objections are taken care of, so that the only time that a victim does not have the benefit of the deep pocket of the United States is when the employee was plainly acting outside of the scope of his responsibilities, such as an off-duty law enforcement official engaging in an assault of his neighbor for purely personal

reasons.

Finally, the Committee needs a definition of the phrase "tort arising under the Constitution of the United States" in section 3(b)(1) of S. 1775. We are concerned by the modifying phrase in new section 2674(b)(1) which limits such a tort to one which is "recognized or provided by applicable Federal law" because the language seems to suggest that if the tort is not currently recognized, there would be no recovery. Thus, there would be no future evolution of the law of constitutional torts, and hence that concept would be unduly narrowed. We recognize that the potential that constitutional torts have for swallowing up a large number of ordinary torts, but we believe that there are better solutions to that problem. As in the past we stand ready to work with the Department of Justice and the Congress on it. Our principal point is that it is irresponsible for

Congress to proceed unless such a definition of, or more

properly a sensible relation is created between, constitutional and nonconstitutional torts.

CONCLUSION

Whatever the merits of the general principle may be that the remedy against the United States should be exclusive when the wrongdoing is that of a federal employee, it requires meaningful alternative remedies and adequate deterrence to prevent wrongful acts by federal employees. Because S. 1775 does not meet these prerequisites, we cannot support it. We do, however, stand ready to work with the Committee to provide a bill which would meet these standards in the manner outlined

above.

Senator GRASSLEY. Dr. Marvin Schneiderman is our next witness. I understand that you are-would you like to come to the witness table? I understand that you are a senior science adviser with the Division of Life Sciences at Clements Associates. In 1979 you were sued personally for statements which you made in your capacity as Assistant Director of the National Cancer Institute, Division of Science Policy. We thank you for taking the time to appear before us today and to share with us your experience with this problem that S. 1775 deals with.

Please proceed.

STATEMENT OF MARVIN SCHNEIDERMAN, STATISTICIAN, FORMERLY WITH THE NATIONAL CANCER INSTITUTE, BETHESDA, MD.

Dr. SCHNEIDERMAN. Thank you, Senator Grassley, and I'm pleased to be here with you today. I have no formal statement but I'll try to tell you informally the background to my suit and then my reactions to it.

I was trained as a statistician and I have an undergraduate degree from City College of New York and then eventually I received a Ph. D. degree in statistics from the American University here in Washington after having spent a year as a Rockefeller Public Service Fellow in the London School of Hygiene and Tropical Medicine. My work in statistics has been almost exclusively in the field of biology and medicine. My doctoral degree was on a mathematical technique for reducing the amount of experimentation necessary in human experiments in order to achieve statistically significant results, convincing results, in evaluating new treatments for disease.

I was at that time particularly interested in experimentation relating to the treatment of cancer and very much concerned that excessive experimentation on humans should not occur.

I'm a member of a large number of scientific societies and an honorary fellow of several of them and I've attended a large number of universities as a student. That sounds as if I were a bad student and got kicked out, but I really didn't.

I came to the Federal Government in 1940 as a clerk in the Census Bureau. Including my military service, I had 40 years of service in the Federal Government. I left the Census Bureau to go to work for the to go into the Army during World War II. I was in the Air Force. I eventually was discharged as a first lieutenant, and after a short civilian service with the War Department I joined the National Cancer Institute in 1948 as a research statistician, as an adviser to the research scientists. By the time I had left the National Cancer Institute in 1980, I had written an inordinate number of scientific papers, which I don't think hardly anyone is ever going to read. But I was, by that time, I had been the associate director of the Institute for Field Studies and Statistics. That's epidemiology and statistics, the causes and course of disease in humans. Then eventually, in my last position, I was the associate director for science policy.

In that position it was my function essentially to be the spokesman for the institute on scientific issues in discussing things, as it were, with the general public. I often substituted for the director of the institute on those issues. Talking with the media, for example, I was on "60 Minutes" and several other TV programs.

It was because of these last two jobs that I got involved in this particular law suit. The issue of the suit was related to the artificial fluoridation of water supplies, to reduce dental caries. Fluoridation has been opposed by many people in this country, I think out of good faith and in complete honesty, for various reasons. At one time it was opposed because the fluorides were said to be rat poisons and we shouldn't give people rat poison. At another time there was a small group of people who were opposing fluoridation, arguing that it was a technique for poisoning people of the United States and really it was a Communist plot. I don't think people paid much attention to that.

In the middle seventies my staff at the Cancer Institute pulled together all the data on mortality from cancer in the United States by county, for every county in the United States, for the period 1950 through 1969. It's a monumental piece of work. The resulting publication is thicker than the Manhattan telephone directory.

Following our publishing this book, a group of people who were opposed to fluoridation used these data to demonstrate that the cities which had fluoridated water, had higher cancer rates than cities which did not have artificially fluoridated water. From a scientific point of view what they had done was a rather poor piece of work. They hadn't looked at the fact that these cities had higher rates before fluoridation and not just higher rates afterwards. They had not looked into the fact that the age/race/sex compositions of these cities was different than the age/race/sex compositions of the unfluoridated cities. They didn't look into the fact that the fluoridated cities were largely in the Northeastern part of the United

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