Congress may not destroy that right by "substituting" an allegedly equivalent remedy which bars a plaintiff from access to a jury. Whatever the constitutionality of the Federal Tort Claims Act ban on jury trials, it may not be applied to frustrate the existence of a right to a jury trial under a wholly separable cause of action. cf. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525 (1958). (Federal jury trial rules apply in diversity cases because of strength of policy in favor of a jury). Dice v. Akron, Canton & Youngstown RailRoad Co., 342 U.S. 359 (1952) (applying Federal jury trial rules in state FELA cases because of strength of policy in favor of jury trial). Second, while punitive damages are available to a Bivens plaintiff, punitive damages may not be awarded in a Federal Tort Claims Act case. Given the difficulty of valuing constitutional rights, the combination of an artificially low liquidated damage formula, coupled with a ban on punitive damages and a ban on jury trials, deprives a constitutional plaintiff of the opportunity to recover meaningful awards against a wrongdoing official who may have wilfully violated his constitutional rights. Moreover, as the Supreme Court noted in Carlson v. Green, 446 U.S. 14 (1980), a Federal Tort Claims Act remedy is not an adequate "deterrent" substitute for a damage remedy against a wrongdoing official for obvious reasons. As the Court ruled in Carlson: "...the Bivens remedy, in addition to compensating ... Since the so-called substitute remedy is patently inadequate from the standpoint of both compensation and deterrence, it falls below the constitutional minimum. Where Federal courts are vested with the responsibility to enforce the Constitution of the United States, Congress may not strip them of traditional remedial tools and seek to substitute a patently inadequate placebo. Congress is not, however, without power to deal with the problem which S. 1775 seeks to solve. Federal officials who act in good faith and with reasonable cause to believe that their acts are lawful ought not bear the economic cost of a constitutional violation. Similarly, Federal officials performing acts which qualify for a degree of immunity should not be faced with possible damage awards. Both the good faith and immunity cases may be dealt with, not by imposing a blanket Tort Claims remedy which shields wilful wrongdoers from the economic consequences of their acts, but by the imposition of a selective procedure which would allow "good faith" officials to pass the ultimate economic cost to the government, while forcing "bad faith" officials to face the economic consequences of their wrongdoing. Such a selective procedure already exists in the form of Federal impleader. Were the Tort Claims Act amended to permit Bivens defendants to implead the United States, a selfexecuting mechanism would allocate the economic loss caused by a constitutional violation to the proper party. Bivens defendants who are entitled to a good faith defence or to a degree of immunity would be shielded if the United States consented to be impleaded. Bivens defendants who act in bad faith would be unable to succeed in impleading the United States and would, with justice, be forced to pay damages personally. S. 1775 seeks to shoot a gnat with a cannon and succeeds only in wounding the courts and raising serious constitutional questions. An impleader remedy, on the other hand, would operate selectively to allocate loss in constitutional cases in a fair and equitable manner without weakening the enforcement power of the Federal courts. Senator GRASSLEY. Our next witness is a former U.S. attorney and current partner in the law firm Lisman & Lisman out of Burlington, Vt. I have in hand a letter that Mr. O'Neill sent to Attorney General Smith prior to his leaving the Government. In that letter, you, Mr. O'Neill, expressed your concern with one case in particular in which you were involved in a representative capacity. Mr. O'Neill, I'm going to take the liberty of quoting some of the passages in that letter and will also place the letter in the record. With reference to this lawsuit, which was brought by a logger against 17 employees of the Forest Service, you stated in your letter to the Attorney General In every instance in this case, the Government employees were acting in the course of their official duties. They were subjected to very real concerns for their personal assets because of their Government job. Even though the likelihood of recovery was not great, simply the bringing of this lawsuit caused these individuals significant anxiety. In addition, although these are all very conscientious individuals, one can easily see that they probably will not feel as strong a sense of duty in difficult future situations in view of the fact that they might be sued personally for action which they take. Mr. O'Neill, I want to thank you. I think you put the matter very succinctly in your letter to the Attorney General, and we would certainly like to hear your thoughts on this legislation. Would you please proceed? And as I stated before, if you want your whole statement put in the record and then summarize, I would encourage that. Mr. O'NEILL. I certainly would be pleased to do that. I will submit the entire written statement for the record and briefly summarize it. STATEMENT OF JEROME F. O'NEILL, ATTORNEY, LISMAN & LISMAN, BURLINGTON, VT. Mr. O'NEILL. My experience, comes from having been with the U.S. Department of Justice in the U.S. attorney's office in Vermont in varying capacities for 81⁄2 years so that I have a very good idea what agents and other employees go through when they are sued personally. I wrote the letter which you have referred to never expecting to be sitting here or having it read into this record, because I felt it important to add one more voice to what I could see was a difficult problem which needed attention. Federal employees, I think, are virtually unique in the mainstream of employees in this country due to the personal liability which they are subject to, for their actions taken on behalf of the Government. I cannot understate to you the devastating effect on a Government employee that a lawsuit against that individual personally has. CASES WHICH ILLUSTRATE WHY THE LEGISLATION IS NEEDED There are two particular cases which I have used as reference. You have alluded to one of them. I would like to briefly mention the second of the two cases, which involved an action against Federal and State law enforcement agents, the latter, of course, being covered by insurance. The Federal employees were sued for over $1 million and the named lead defendant in the case was a Federal agent. In my experience he was one of the best Federal agents in the country, and I say that after dealing with a lot of agents. He was eligible for retirement, and after that action was brought, you could see physically the effect the lawsuit had on him. He had a bad eye and you could see that eye twitch more-I mean that literally-after this action was brought. He retired 4 years earlier than he could have despite the fact that he thoroughly loved the job that he was doing. Of course, the irony is, that shortly after he retired, a U.S. district judge concluded that the plaintiff had failed to state a cause of action as to him. However, by then, it was far too late. The second instance that I have specifically referred to-and these are, I am sure, representative of the instances where actions have been brought around the country-involved the logging case which you referred to. In that case, there was absolutely no question that the Government employees, in every instance, were acting within the scope of their duties and employment. Nevertheless, they were subjected to personal liability through having this action brought against them. SUING THE GOVERNMENT MUST BE THE ONLY REMEDY The logging case stands for a proposition which I think it is important to have in mind, because that in that instance the plaintiff had available to him a remedy under the Tucker Act for breach of contract had he wished to bring an action against the United States in the Court of Claims. Therefore, it is clear that legislation which simply provides someone with an alternative remedy is insufficient to protect employees personally. A suit against the United States alone must be their exclusive remedy. Otherwise, people, for rational or irrational reasons, may choose not to use it, but to sue the Government employees personally. I have seen Government employees ask difficult and unpleasant questions after being told that they are going to have to be personally liable for any judgment entered. They question what is going to happen with their families, their houses, their children's education. They seriously wonder whether or not they should have been acting on behalf of the Government as conscientiously as they did. GOVERNMENT EMPLOYEES ARE NOT DOING THEIR DUTY I can tell you right now, literally, that there are Government employees who are not doing their duty. Perhaps not too many of them, but I do know of U.S. Customs inspectors who have been criticized by the people they work with for conducting legitimate searches on the theory of, "Why did you stick your neck out in that particular instance?" The reason, Senator, is simple: The fact that those people are concerned that they will be sued personally. If they do not have a legitimate concern, I can see no reason why we should provide a crutch in that situation for them to rely upon and fail to do their duty. I am also aware of criminal defense lawyers who use the personal liability of individual employees to remind them that if they are too aggressive, they can be personally sued. All of us know deep in our hearts, that when you tell someone that a certain percentage of the people will be affected by it and change their conduct to do less of a job than they should. Issues as to how an investigation is conducted are meant to be resolved at the supervisory levels, not by threatening someone with what will happen to him and the members of his family if you do not like what he does. ANY POTENTIAL DETERRENT IS OUTWEIGHED BY THE HARDSHIP OF PERSONAL LIABILITY The Government has available to it a wide range of civil and administrative remedies in addition to that which would be provided by the referral structure contained in the proposed legislation. We do not, I submit, need personal liability to get a deterrence to wrongful conduct. It may be that there is an argument, and I think with some legitimacy, that in a certain small percentage of cases that liability has a deterrent effect on wrongful personal conduct. The difficulty with this approach, however, it is that the number of cases which it applies to is so small that what we are doing is killing a gnat with a tank. It is absolutely out of proportion when we look at the very small number of instances where deterrence may have any value. At present, the deterrence we have is deterring Federal employees from doing their own duty. THE AGGRIEVED CITIZEN NEEDS THIS LEGISLATION I also would add that I think this legislation is necessary not only from the point of view of the employee, but in the instances that have been referred to here today, in order to compensate people who actually have been injured and do have a right to some form of recovery. I think that it is noteworthy that in the Bivens case, which has been referred to here, that in the end Mr. Bivens got a $300 settlement. He would have been far better off to have this legislation in effect. While it is fine to talk about the need for deterrence, I think that in the overall spectrum of things, that this legislation will make it much more equitable for people who have been injured because they will have a viable method of recovery. The little old lady in the analogy you heard a few minutes ago would have no difficulty recovering to the full extent of her compensatory damages under the Federal Tort Claims Act. So, I think that illustrates again why that type of information is important. CONFLICTS IN REPRESENTATION ARE ABOUT TO BECOME A The likelihood is continually increasing that when an action is brought against a Federal employee or employees, that there will be a conflict with his employer or with other employees, making it impossible for the U.S. attorney to represent them all. I am amazed at the relatively small amount the Justice Department has paid out thus far for private counsel fees. In addition, the present state of the law has created a situation where the Government may be paying out-let's pick a figure-$50,000 in private counsel fees in a |