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DEPARTME

between the depreciated value of the property loss of $23,703.42 and the sum of $15,000, the maximum payable, and the amount paid to Sergeant Baca, under the Military Personnel and Civilian Employees' Claims Act of 1964 (31 U.S.C. 241, et seq).

While the Air Force regrets Sergeant Baca's loss and the resulting hardship suffered by his family, it cannot support the proposed bill. Sergeant Baca has provided no compelling reasons to make him an exception to the statutory limitation of $15,000 authorized by the Military Personnel and Civilian Employees' Claims Act of 1964, as amended, and settlement of claims under this authority is by the terms of the statute "final and conclusive.' See 31 U.S.C. 242. Enactment of the subject bill would be contrary to the clear purpose of this language. It would be inappropriate to accord such preferential treatment to one military member while denying the same treatment to other members who are similarly situated.

The enactment of S. 16 would not cause a significant increase in budgetary requirements.

This report has been coordinated within the Department of the Defense in accordance with procedures prescribed by the Secretary of Defense.

The Office of Management and Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Congress.

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On November 16, 1981, your Subcommittee received testimony from Department
of Defense General Counsel William H. Taft, IV, on S. 1775, 97th Congress,
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 U.S. employees, to provide a remedy against the United States
with respect to constitutional torts, and for other purposes. The Depart-
ment of the Army had also been invited to testify, but since Mr. Taft's
testimony expressed the views of the entire Department of Defense, it was
not considered appropriate that the Department of the Army present separate
testimony. However, to the extent that the Department of the Army, and in
particular, the Corps of Engineers, have been involved in somewhat unique type
of litigation which would be affected by the enactment of S. 1775, we wish to
submit the following report for the consideration of the Committee.

The purpose of S. 1775 is to protect federal employees from lawsuits brought against them in their individual capacities for tortious acts committed within the scope of their employment. This is accomplished by substituting the

United States as party defendant in Bivens1 or "Constitutional" tort cases,
and by expanding the Federal Tort Claims Act to make suit against the United
States a plaintiff's exclusive remedy for common law torts committed by
Government employees within the United States.

Recent years have seen a phenomenal increase in the number of suits brought
against individual federal employees. The expansion of the Bivens doctrine,
and the concomitant prospect of personal liability for many types of actions
taken within the scope of employment, have seriously impaired the ability of
many employees to fulfill their duties effectively. This problem compels the
conclusion that some type of remedy must be made available against the United
States for official decisions which are alleged to have deprived some individual
of a Constitutional right.

The extension of the Federal Tort Claims Act to protect employees from individual liability for other torts is of equal importance. At present, suit against the United States is a plaintiff's exclusive remedy under the Drivers' Act, 28 U.S.c. 2679 (b), only if the federal employee's alleged negligence involved his operation of a motor vehicle within the scope of his employment. This limitation leads to the anomalous situation of protecting employees driving trucks and cars, but exposing employees operating tools or heavy machinery to the prospect of lawsuits brought against them individually. The Department of the Army believes that the considerations which orginally prompted the enactment of the Drivers' Act apply just as forcefully to extending that Act's coverage to other torts committed by federal employees.

Currently, the United States' support of individually sued employees is limited to providing Justice Department representation for the defendants and, if a judgment is rendered against the United States as well as an individual defendant, paying the judgment. This is of little solace to an employee faced with the possibility of having to personally satisfy a judgment of tens or even hundreds of thousands of dollars if the United States is not sued or is dismissed as a defendant.

Several recent suits against four Corps of Engineers employees have dramatically illustrated the problems such lawsuits cause. In October 1979, a drill rig mounted on a 2 1/2 ton truck lost traction on the slope of a dam in Puerto Rico and rolled into a bulldozer, injuring an employee. In October 1980, the injured man brought suit against the truck and bulldozer operators, a supervisory geologist and the Resident Engineer in charge of construction.

Although lawsuits were dismissed recently by stipulation, widespread knowledge of these cases has seriously affected the morale of hundreds of Corps employees in the Southeastern United States. Problems voiced by some of these employees included the impossibility of obtaining insurance coverage and reluctance to direct subordinates to perform potentially dangerous tasks. On a more fundamental level, anger over the United States' failure to protect these defendants caused some employees to question the desirability of remaining in federal service.

These cases also highlight the fact that almost no government employee is safe from the prospect of being sued individually. The problem can affect both supervisory white-collar officials and blue-collar laborers. Indeed, blue-collar workers may be more exposed to ultimate liability than their white-collar counterparts, who have available to them the defense of qualified immunity for discretionary acts. It is ironic that blue-collar workers, whose activities are overwhelmingly ministerial in nature, may well have greater contact with the public and more hazardous jobs than the official whose discretionary functions bring the immunity defense into operation.

Enactment of S. 1775 would ensure adequate protection of employees who face the
risks of potentially devastating lawsuits. Furthermore, it would do so without
interfering with the government's authority to discipline its employees for
negligent or wreckless conduct, thereby insuring the accountability of the
employee. Accordingly, the Department of the Army strongly supports enact-
ment of S. 1775.

This report has been coordinated within the Department of Defense in accordance with procedures prescribed by the Secretary of Defense.

IBivens v. Six Unknown Named Agents of FBN,

403 U.S. 388 (1971).

The Office of Managment and Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee.

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This is in response to your request for the views of the Department of Energy on S. 1775, a bill "[t]o 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.

S. 1775 would make the Federal Government the exclusive defendant in all tort suits involving Federal employees acting within the scope of their employment. The Federal Tort Claims Act currently makes the Government liable for negligence or wrongful acts or omissions committed by Federal employees while acting within the scope of their employment, with certain specifically enumerated exceptions. However, the employee, as well as the United States, may be sued for misconduct, thereby exposing the employee to significant personal liability and uncertainty.

The Department strongly supports the concept of absolute immunity for government officials acting within the scope of their authority, to protect them against claims that the present law allows. Officials in this Department have been particularly susceptible to vexatious suits. This has had undesirable effects on public policy decision-making. Many decision-makers may be reluctant to assume an aggressive role in discharging official duties because of the fear of litigation resulting from their actions. No matter what elaborate measures are taken to accommodate competing interests, most decisions cannot satisfy all interested parties and the decision-maker may then be faced with potential law suits. Moreover, no general provision exists in current law for indemnification of a sued Federal official.

The Department of Energy supports enactment of S. 1775 but defers to the Department of Justice for detailed comments on the bill.

The Office of Management and Budget has advised that, from the standpoint of the President's program, there is no objection to presentation of this report for the consideration of the Committee.

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I appreciate the opportunity to present to your Subcommittee the position of the Department of Health and Human Services in support of 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.

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We heartily endorse the testimony of Deputy Attorney General Everett C. Schmults who provided your Subcommittee with the Administration's position on S. 1775. The experience of this Department supports his conclusion that recent judicial developments respecting the liability of Federal employees for so-called constitutional torts requires a Congressional response. As in other Federal agencies, officials of this Department have been subject to vexatious and spurious lawsuits against them in their individual capacities based on the conduct of their official duties. Such developments cannot help but make Federal officials overly cautious and justifiably anxious concerning the discharge of their responsibilities.

The enactment of S. 1775 would protect Federal employees from suits for money damages arising out of constitutional torts allegedly committed in the performance of their official duties, while at the same time providing the victims of con

stitutional torts and most common law torts committed by Federal employees a remedy against the United States. The bill would integrate into a cohesive structure within the existing format of the Federal Tort Claims Act the government's exclusive liability for constitutional torts and most common law torts. In doing so, we believe it would also lessen the increasing number of spurious claims filed against Federal employees in their individual capacities.

Employees of this Department have been subjected to a wide range of lawsuits against them individually. Employees are required to make decisions in disciplinary and other personnel actions respecting subordinate employees, to perform investigatory functions, to conduct food and drug inspection and seizure activities, to make decisions respecting the denial or termination of benefits or contracts, and to maintain a wide variety of records respecting the medical and other personal information about individuals. All of these activities can and do give rise to allegations of constitutional torts. We believe employees who are engaged in these functions need and deserve the protection that would be provided by S. 1775.

In our view this bill is superior to those previously introduced to deal with this problem. The bill provides, for example, that in any suit in which the United States becomes liable for the constitutional tort of an individual, the United States could assert all of the defenses available to the employee if he had been sued personally, thus making clear that there is no absolute liability in such cases. We also favor the amendments made by section 5 of the bill that would provide that the Attorney General's certification of scope of employment would be binding and conclusive on the courts. We have experienced occasions in which a court has refused to accept a government's certification of scope of employment where, because of the time limits for filing Federal tort claims, no remedy would have been available against the United States. The bill would resolve this problem by providing that the statutory time limits would not bar an action if the claim would have been timely filed on the date the action against the defendant employee was commenced.

No employee should have to bear the financial and emotional burden of charges that arise out of the conscientious execution of his or her official duties. Since there is no present authority to hold an employee harmless in such cases or to provide liability insurance, employees whose work exposes them to controversy and confrontation must now suffer the anxiety of potential personal liability. S. 1775 would correct this situation with respect to constitutional torts and most common law torts, and we, therefore, urge your Subcommittee to give that bill your prompt and favorable consideration.

We are advised by the Office of Management and Budget that there is no objection to the presentation of these views from the standpoint of the Administration's program.

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