Senator GRASSLEY. Our next witness is a district ranger for the Forest Service, who has undergone the experience of being sued personally for decisions he made in the course of his Federal employment.

Mr. Lehman, I thank you for coming. I understand that you were subjected to a possible liability of $148,000 in damage and that the jury did, in fact, return a verdict against you in the amount of $1,000 of compensatory damages and $216.50 in court costs.

From my understanding of your case, you took every precaution in carrying out your job. At any rate, the Supreme Court has remanded the appeal back to circuit court so there may be some changes to come.

I would like to have you proceed with your statement.

Mr. LEHMAN. Thank you, Senator. My statement is rather short so I will read it.

Senator GRASSLEY. Before you begin, do you have any members of your family you would like to introduce or anything? Do you have anybody here with you?

Mr. LEHMAN. My wife has accompanied me to Washington.
Senator GRASSLEY. Your wife. OK.

Mr. LEHMAN. Yes, my wife Evelyn.

STATEMENT OF ROBERT C. LEHMAN, DISTRICT RANGER, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, AVERY, IDAHO Mr. LEHMAN. Since we started off so informally, I might just say that I am here far removed from my natural and loved environment, but I'm quite honored to sit before you today, Senator.

My name is Robert Lehman and I am a district ranger with the Forest Service and I will proceed with my statement and give you plenty of time for questions.

Senator GRASSLEY. Thank you.

Mr. LEHMAN. Like I said, I am a ranger in the Forest Service in the U.S. Department of Agriculture. As District Ranger, I am responsible for the administration of 360,000 acres of public land on the Red Ives Ranger District of the Idaho Panhandle National Forest. My statement today involves my personal experience as a Federal employee who has been adversely affected by a court-imposed constitutional tort.

It begins back in 1967 when an unpatented mining claim on the National Forest lands was leased to a company called Continental Rare Metals, who contracted with Mr. E. B. Weiss to construct a dredge for mining operations.

Upon the expiration of the lease, Continental did not remove its equipment and by terms of the lease, it reverted back to the mining claimants.

All of the usable machinery were supposedly removed in 1968 by the claimants. The remaining abandoned waste consisted of garbage, bus bodies which had been smashed and stripped, and scrap metal. When I asked, the claimants and their associates disclaimed any ownership in the remaining debris.

In 1973, at the direction of my supervisor, I prepared plans for the inactive, unpatented mining claim site under the authority of the Solid Waste Disposal Act. The mining claim site was adjacent

to the St. Joe River, which at the time was under study for possible inclusion in the Wild and Scenic Rivers System and has since been designated as part of the system by Congress.

Prior to implementing the cleanup plans, notice of intent was provided to the claimants; however, Mr. Weiss was not personally notified as I was unaware of a verbal agreement which Mr. Weiss claims transferred the remaining material to him.

In May of 1973, Forest Service employees under my direction, and with the knowledge and consent of my supervisor, buried and removed most of the remaining scrap metal from the claim and closed the access road to the site.

Two years later, out of the blue, a U.S. marshal knocked on my door and presented me with a summons. I was being sued for my actions in removing and cleaning up the claim site, to the tune of $48,000 compensatory damage and $100,000 punitive damages. At first this was incomprehensible, but as the shock wore off, the seriousness of the matter began to wear on me. The amount of the suit was unreal and the potential was there to wipe out my total assets plus my future.

The lawsuit resulted in a significant time impact on me. For the next 3 years, I had to devote considerable time and thought to the preparation of depositions and answering interrogatories. Finally, in July of 1977, we moved for summary judgment. The plaintiff filed a cross-motion for a partial summary judgment. The district court ruled that it had jurisdiction and the case was tried by the jury in June of 1978. The jury found against me and awarded $1,000 compensatory damages plus $216.50 court costs to Mr. Weiss. The next step was to appeal the judgment. The appeal was argued in the ninth circuit court in November of 1980. The circuit court upheld the lower court's decision and the appeal was then taken to the Supreme Court in 1981, which remanded the appeal back to the Ninth Circuit Court, and presently the parties are filing briefs for the court of appeals which will then rule on it.

The unsettled suit has been an ominous cloud over my personal and financial situation for over 8 years. Even worse than the possible financial damage, is the uneasy feeling I get each time that I make a decision.

I have forced myself to cope with this situation so that I can carry on my duties and responsibilities as a Federal manager, but it has not been easy. Litigation of the type I have experienced cannot help but affect decisions by me and other Forest Service employees close to the case.

In the case that I have just described, the plaintiff is still operating on the Red Ives Ranger District. Each year I am faced with several decisions regarding his business operations on the Forest.

One of the greatest anxieties in my case was the uncertainty at various points of wondering if the Government would continue to pay for the counsel who represented me or whether I might be forced to retain a private attorney.

In closing, I would like to emphasize that decisionmaking in the public arena is tough enough without our management folks at various levels of the organization being exposed to petty and nuisance lawsuits for decisions made clearly in the line of duty and in the public's interest.

Mr. Chairman, this concludes my statement and I would be happy to respond to any questions that you have.

Senator GRASSLEY. Thank you very much.

Could I start out by asking how long you've been in the Forest Service?

Mr. LEHMAN. I have been with the Forest Service 30 years.

Senator GRASSLEY. Could you go into any more detail than what you have already about how this kind of even today affects how you perform your job and how the lawsuit has influenced decisionmaking, or maybe just let me say, your daily work habits?

Mr. LEHMAN. Yes, I would like to say that there are many decisions to be made each day in the management of the forest.

Senator GRASSLEY. Would you say that this lawsuit causes you to think about almost any decision you make?

Mr. LEHMAN. It certainly does, and it did even more so when the possibility of the settlement was $148,000. When I got the judgment of $1,000, it was livable, you might say, but the $148,000 had the potential for destroying me, affected every decision because, if I was sued over what was a very simple decision that was favorable with all of the public inputs that I had plus internal inputs—if I was getting sued over one that I was receiving favorable comments on, what is the potential on these where I know there's conflict and I know I'm getting brickbats thrown at me.

Does this answer your question, Senator?

Senator GRASSLEY. Yes.

What effect did this suit, if any, have on your family? Do you have children?

Mr. LEHMAN. We have three children that are grown now who were in their teens during the beginning of this and it has had effect on the entire family and has indirect effects that I didn't list in my testimony, such as if I had been seeking credit or seeking a mortgage this suit would have been a liability. I have not done this during this 81⁄2 years so I have not listed this potential liability as a credit reference.

I might say to answer that better that originally in this case there were two defendants and Mr. Wayne LaRue was sued along with me. I feel that I had the personality and patience to cope with this, but my codefendant, Wayne LaRue, took an early retirement and very rapidly developed the attitude, "Why should I work and save if I'm going to lose it in something like this?" The codefendant in this case suffered much more visible trauma than I did in the

case.

Senator GRASSLEY. Have you had any problems securing credit since the judgment was entered against you?

Mr. LEHMAN. I have not applied for any, but I'm sure that this is something that is asked by creditors when seeking mortgages and credits.

Senator GRASSLEY. What's the impact that this suit or judgment against you, or the suit generally, has had on coworkers? For instance, could you give us some common comments that you may hear your coworkers make as a result of what has happened to you-or in any other way that you might want to generalize?

Mr. LEHMAN. Just the keeping of my self-confidence with a suit like this hanging over my head has been a constant struggle for me

and my subordinates, they have an uneasy feeling sometimes if I'm directing them to do something, when here, I had directed them to do something that turned out I got sued over. So, it takes an extra effort on my part to maintain my leadership on the ranger district with subordinates.

With my peers in other districts, they are very interested in what I am doing and are watching this case as it affects decisions they must make. They know that I was sued over a relatively easy decision that I had to make and even though they have not been sued, they are uncomfortable with the thought of being sued over a decision that was so simple and in the line of duty and in the public's interest.

Senator GRASSLEY. Could you in some way tell us to what extent you went through checking with superiors and people around you the manner in which you should dispose and how you should go, and whether or not you should dispose of the property?

Mr. LEHMAN. Yes, I would be glad to. If you remember in my testimony, I said this started in 1967 and I came on to the District in 1972. So, the first thing I did was to arrive at the obvious decision after viewing this junk, that something should be done and I was getting inputs from my superiors that something should be done. The first thing I did was review all of the procedures that my predecessor had gone through. And he had gone through all of the hoops of contacting the people involved, posting that the project would be done, and I went through these again, and I think it came up earlier today-one statement that was made is that sometimes there's an ax to grind between two individuals. I would like to add to that, that oftentimes I feel in the Government it's not necessarily an individual, it's an ax to grind against a position, in this case a district ranger-we had changed rangers in the interim, and if there was any of this axe grinding, it's not necessarily between two individuals, but between an individual and a position.

But we went through all the hoops of trying to locate the owners. And of course, my first interest was to get the person responsible to clean it up. Why clean it up with Federal funds when somebody left that garbage on the national forest? This was the first approach I took, to find the responsible individual. Well, now that I've found the individual, I am so tied up in this case that I can't get the rest of it removed. We surely didn't remove all the junk. All that we removed was the unsightly, truly garbage-type material from the site.

Senator GRASSLEY. Thank you very much, Mr. Lehman. We appreciate you and your family coming out here to testify and giving us your point of view on this legislation.

Mr. LEHMAN. Thank you.

Senator GRASSLEY. Our next two witnesses are both current U.S. attorneys. Mr. John S. Martin is the U.S. attorney, for the Southern District of New York. Mr. Martin, I will tell you that your entire statement will be placed in the record, and if you want to, feel free to summarize.

STATEMENT OF JOHN S. MARTIN, JR., U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK

Mr. MARTIN. Thank you, Mr. Chairman. I certainly will summarize rather than read the entire statement. Indeed, the last witness made more poignantly than I could, the plight of those Federal employees who are being sued in their individual capacities.

As my statement indicates, I have had experience with Bivens types of actions first as an attorney in private practice, where I was retained by Federal agents being sued in their individual capacities when they were told that the Government would not represent them.

This is a terribly demoralizing experience for a Federal agent who has-in both of the cases in which I was involved, the agents had been carrying out the explicit orders of their superiors in the conduct which gave rise to the litigation.

They found it very difficult at that point to understand why it was that the Government had abandoned them and would no longer represent them. I think it really did have a demoralizing effect on them, at least in one case. They have both since retired from the bureau. Whether that advanced their retirement, it's hard to say, but I think it may well have.

In other instances, as U.S. attorney in the Southern District of New York, I am presently representing 160-odd different Federal employees, all of whom we are forced to send a representation letter very much in the form that the one that is attached to my statement, in which we indicate to the agent the limits of the representation that will be provided to him. I have received those letters myself because I have personally been sued now at least twice since I've been U.S. attorney. And even knowing all this, it still is somewhat demoralizing to see all of those limitations that are contained in the representation. The agent is told that we cannot sue the United States, we cannot take positions inconsistent with the views of the United States and they are told that we cannot implead any other Federal official. So, an agent acting under orders, carries out the orders and is sued and finds himself in the position where the person who gave him the orders is not in the lawsuit and he can do nothing to bring that person into the lawsuit.

This creates morale problems. The problems also arise because in many of these cases, the search and seizure-type cases and other cases as well, very often the Government has considerations that make you take actions which are beyond the considerations in the normal lawsuit.

For example, questions of privilege. The Government may want to assert a privilege rather than expose certain information that could provide a complete good faith defense to the agent. The agent is somewhat demoralized when he realizes that there is some defense available to him which the Government is not going to assert. He sees his house going and his college education for his children, all that money going to satisfy a judgment because the Government won't put on the table all of the information that he knew of at the time he took his action.

So, I think that this legislation is really necessary to cure some of these problems. Also, this legislation will save a substantial ex

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