affected thereby without considering the temptation of taking the safest action in terms of producing controversy, novel action, or lawsuits.

I attack head-on any suggestion that the possibility of suit against individual Federal employees personally is necessary or desirable as a guard against improper action by Federal employees. I know, for example, of no evidence that drivers of Federal vehicles have become more accident-prone since they received statutory immunity in 1961, or that various categories of Federally employed medical personnel became less dedicated or less able after various statutes provided immunity to them in 1965, 1970, and 1976.

There are adequate existing controls on the acts of Federal employees, without needing the threat of a personal lawsuit. I believe that to almost all Federal employees the accountability to supervisors which governs assignments, evaluation and promotion is the most direct type of control. In addition, I cannot over-emphasize the fact that the activity of the many Federal employees for whom I speak is governed by their respective codes of professional conduct and their general professionalism and ethics. It must also be remembered that although the proposed legislation would immunize the individual, a lawsuit against the United States based upon an employee's conduct would nevertheless directly bring into question the activity of that individual. Such a lawsuit would thus involve the reputation of the employee whose conduct was questioned.

But more directly, the proposed legislation expressly states that in cases of constitutional torts, if a suit results in a settlement or judgment paid by the United States, the Attorney General "shall" forward the matter to the head of the department which employed that individual for appropriate administrative investigation or disciplinary action. The laws available to the chief agency administrator or to the Inspectors General provide sufficient basis for disciplining employees for irresponsible acts. We believe that this provision which allows for appropriate administrative flexibility is far superior to any provision which would attempt to establish by legislation prospective specific disciplinary measures for every conceivable type of misconduct.

There is no question that Congress has the ability and authority to establish the Federal Tort Claims Act as an exclusive remedy. In Carlson v. Green, 446 U.S. 14, 18-19 (1980), the Supreme Court held that the availability of a remedy under the Federal Tort Claims Act did not preclude a Bivens suit because Congress had not explicitly declared the FTCA remedy to be a substitute

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for recovery directly under the Constitution and viewed as equally effective. Passage of this legislation would provide that explicit declaration that the Federal Tort Claims Act remedy is to constitute an equally effective substitute for recovery directly against a Federal employee acting within the scope of his employment based upon either the common law or an action under the Constitution.

Significantly, in the Carlson decision, at page 20, the Court noted that in the past Congress had explicitly stated its intention to make the Federal Tort Claims Act remedy exclusive, citing the statutory immunity statutes applying to Federal automobile drivers, medical personnel employed by various Government departments, and the manufacturers of swine flu vaccine. The proposed legislation is patterned upon those statutes and thus would receive a similar judicial interpretation. That is quite important because those statutes have repeatedly withstood any challenge to their constitutionality. The necessity for this legislation cannot be played down by rhetoric. As Deputy Attorney General

The proposal is not in any way an over-reaction.

Schmults noted, there are approximately 1,500 lawsuits, many with multiple individual Federal employee defendants. The issue that should be addressed is whether thousands of Federal employees and their families should be put through the ordeal of suit, the accompanying worry and the possibility of financial ruin so that the rare Federal employee who in the minds of some may deserve to pay personally will not escape. I submit that this is far too high a price to pay. The thousands of innocent Federal employees should not be punished for occasional acts of a small number of individuals.

The optimism expressed in Butz v. Economou, 438 U.S. 478, 507 (1978) that insubstantial lawsuits against Federal employees could be quickly terminated upon motion has proved to be an illusion.

Instead, the prediction expressed

in the dissent in Butz, page 527, has proved accurate. It has proved to be easy to allege facts sufficient to survive a motion and require a full trial. A recent extreme example occurred in the Black Panther Party, et al. v. Smith (D.C. Cir., No. 80-1302, July 8, 1981). In that case a number of high ranking government officials who were sued filed affidavits stating that they were not in office at the times of the acts alleged and disclaiming any knowledge of or participation in a conspiracy against the appellants. The District Court granted their motions for summary judgment, but the Court of Appeals reversed that decision on the basis that the plaintiff was entitled to more discovery.

The SEA totally supports the goals and major provisions of S. 1775 and we totally endorse the concept that suits challenging the acts of Federal employees should be decided based upon a standard of reasonableness and good faith. It is important to Federal employees that such a defense be retained to avoid the possibility that an employee's position, standing and reputation are not prejudiced by an adverse verdict in a case where the employee did act reasonably and with good faith. Not retaining that defense, just as allowing suit against Federal employees, fosters reluctance to take action where the law is uncertain, the activity is controversial or where there are strong competing interests.

We also favor the elimination of most of the Section 2680 exceptions in constitutional tort cases. This would protect Federal employees from the possibility that a court would permit a suit against an individual employee if the suit against the United States were barred by one of those exceptions. I believe the proposed legislation is advantageous to Federal employees and to plaintiffs. The applicable law would be clarified, eliminating con

fusion. Federal employees would be immunized from suit against them personally without making them unaccountable.

Plaintiffs would have liberalized rights

of suit against the United States, and would be certain of receiving any amount awarded rather than having to take their chance that a Federal employee would be able to satisfy a judgment. We believe that the legislation deserves passage and we urge prompt action.

In closing, the career Senior Executives of the U.S. Government have in my estimation provided the American people a calibre of administration that is and should be the envy of any government in the world. They take seriously the charge of administering the laws of this land as equitably and efficiently as possible. They bring to those jobs enormous training and experience and the reputations of a lifetime of public service. They entered the profession of Senior Executive in part in hope that at long last they would be accorded the visibility and respect that their performance merited. But they live each day with the denigration of their worth whether it be in limitations on pay, or in exposure to possible suits for actions performed within the scope of their jobs. One does not have to look far to find evidence that even the most dedicated public employees are finding such conditions intolerable. This bill, for all its individual merit, is really one very

essential piece of a larger set of legislation needed to restore the effective

ness and morale of the public employees on which you depend to implement the

laws you pass.

I shall be pleased to answer any questions the Subcommittee may have.

Recently, I was sued, in my personal capacity, for activities which I carried out in the performance of my official duties. I had discharged an employee for a pattern of conduct of making false, irresponsible statements of criminal conduct against her co-workers. The employee had made more than a dozen charges in this regard, causing severe disruption to our facility, whose function is to develop technical evidence for EPA's enforcement case preparations. The employee alleged that her removal was a violation of her constitutional right of free speech. A major trial of this suit ensued in Federal District Court during the week of October 15, 1981. The jury found for me and not the plaintiff. · Although I received extensive and outstanding support from the Department of Justice during this case, it was an extraordinarily traumatic personal experience for me. My personal and professional reputation, to say nothing of my financial accomplishments (modest as they are) for the past 20 years, were put at great peril by this lawsuit. I am absolutely incredulous that Federal executives can be subjected to this kind of personal liability, to say nothing of the stress of defending oneself when you know you have acted entirely properly.

We are continually being told that we should exercise strict management oversight in assuring the performance of our staffs and the efficient accomplishment of our functions. This sort of personal liability inevitably has a chilling and inhibitive effect toward the accomplishment of that oft-stated goal. It is my belief that the passage of H.R. 24 is an absolute necessity if we are not to be deterred from our supervisory responsibilities by such threats from disgruntled employees. I hope you will redouble the efforts of the Senior Executives Association in this regard. I hope we can depend upon the Administration's active support for the early passage of this legislation, as was indicated by Mr. Meese in your most recent newsletter.

Sincerely yours,

TR. P. Hollyfe

Thomas P. Gallagher
Director, NEIC

CC:

Honorable Edmund Meese III

Senator GRASSLEY. Our next witness is with the Government Accountability Project of the Institute for Policy Studies.

Mr. Clark will be accompanied by Mr. Thomas Devine and Mr. James Gaylord. We are pleased that you could be here today and are ready to hear your testimony. Please feel free to summarize your testimony, if you wish, and, obviously, as I stated before, the full text of your testimony will be printed in the record, if that's what you desire.

Mr. CLARK. My name is Louis Clark and I am Director of the Government accountability project. With me on my extreme left is Mr. James Gaylord and to my immediate left is Mr. Thomas Devine.

Mr. Devine will present some comments. Our written statement is over here on the table and has been submitted to the Subcommittee.

STATEMENT OF THOMAS DEVINE, LEGAL DIRECTOR; JAMES GAYLORD, LEGAL INTERN; AND LOUIS CLARK, DIRECTOR, ON BEHALF OF THE GOVERNMENT ACCOUNTABILITY PROJECT, INSTITUTE FOR POLICY STUDIES

Mr. DEVINE. Mr. Chairman, thank you for the opportunity to testify on S. 1775. We commend you for taking the initiative to insure that there will be a full public debate of the bill.

A common thread of our organization's activities, the Government accountability project, has been vigilance against government abuses of power. We specialize in this area by trying to help those government employees whom we feel are legitimate whistleblowers. We try to expose corruption or illegality. We take very seriously the warning that power tends to corrupt and "absolute power tends to corrupt absolutely." We accepted your invitation to testify because we have serious concerns about the effect of this bill on the most basic official abuse of power-violations of a citizen's constitutional rights.

We applaud the bill for constructively permitting agency chiefs to settle constitutional torts. We would hope that they take advantage of this and that litigation could be minimized.

We have several overall criticisms of what we think might be the effects of the bill. First, we think that its goals are possibly unrealistic and internally contradictory. In our opinion, the only way to achieve all of the different objectives of this bill is through mirrors. Second, we think it is clear that all of those objectives will not be achieved. There will be lawsuits in terms of constitutional remedies. There will be increased flexibility for Federal employees to pursue any activity, and resulting losses for citizen rights.

As the Supreme Court stated in Marbury v. Madison, "The very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury," yet this bill removes the remedies of individuals whose constitutional rights are invalid.

The third overall criticism that we have is that the proponents of the legislation have failed to consider the value of constitutionally protected conduct. We don't think this is a choice just between individual damages and the effective functioning of government. We