US. Department of Justice United States Attorney SDD:cem One St. Andrew's Plaza Special Agent September 14, 1981 Federal Bureau of Investigation Re: Adelona v. Webster, et al., 81 Civ. 0373 (LWP) Dear Special Agent: Your request for representation by a government attorney in the above-captioned action has been granted by the Department of Justice, and the United States Attorney for the Southern District of New York has been authorized to represent you. As you will see from the complaint, a copy of which is enclosed, this case arises out of events at the apartment building at 92 Morningside Avenue in New York City on April 18 and 19, 1980. The plaintiffs, all of whom reside at that address, are seeking judgments of money damages against FBI agents and others who participated in the events in question based on allegedly illegal entries into certain apartments and other allegedly unlawful activities. The purpose of this letter is to provide you with some general information about the case and the nature of representation by this office. This form letter (for which we apologize but which is necessary due to the number of Agents involved) contains information which is applicable to all potential Agent defendants; we will follow up this letter with group and/or individual meetings as necessary to discuss specific aspects of the case which may be relevant to certain of you and to answer any questions you may have. In addition to FBI agents, such as yourself, the defendants include Director Webster, New York City police officers, and the City of New York. At this time, the only federal defendant actually served with the complaint and thus formally in the case is Director Webster, whom we are representing and who, like all Agents, is sued in both his individual and official capacities. We believe the complaint will soon be amended to name the United States as an additional defendant. After the complaint was filed, the plaintiffs filed administrative claims against the United States under the Federal Tort Claims Act. Thereafter, an offer to compromise those claims was made, but it was unanimously rejected by the plaintiffs without the possibility of further negotiation. Counsel for plaintiffs has explicitly stated to the undersigned that the plaintiffs wish to obtain punitive damages from the individuals who were involved in the events in question, and punitive damages cannot be recovered from the United States. Because plaintiffs have taken this position, the offer has been withdrawn. If the plaintiffs should prevail on any of their claims that FBI agents violated their constitutional rights, the Court could enter judgments against all federal defendants for compensatory damages and against the individuals only for punitive damages. The judgments for punitive damages would be enforceable against the personal assets of the individuals held liable, since there is no provision for indemnification or reimbursement by the government or any of its agencies for any such judgments. The legal representation provided by the Department of Justice to federal employees sued in their individual capacities differs in certain respects from legal representation in the private sector. This is so because the principal obligation of every United States Attorney is to represent the interests of the government, and positions contrary to the interests of the government will not be asserted in court. The term "interests of the government" is, of necessity, impossible to define in advance, and the determination of what is in the interest of the government will be made by us, in conjunction with attorneys from the Department of Justice, as specific issues arise in the case. We are enclosing for your review a copy of the current guidelines applicable to the representation of government employees. Two matters which have already been determined in this case may be illustrative of the effect of the guidelines. First, we are precluded from raising any argument against the validity of any governmental privilege, regardless of whether disclosure of privileged information might advance the interests of an individual defendant. However, such privileges may be waived in appropriate circumstances. Second, no third-party or cross complaints against any individual or the government will be filed by or at the expense of the Department of Justice. Thus, under certain circumstances, the representation we provide to federal employees sued in their individual capacities may not include pursuit of certain strategies which might be considered or advanced by private counsel. On the other hand, we will fully represent, within the above contraints, employees sued individually and will assert all legal positions appropriate to the defense of the individuals, as well as the government. You are of course free to retain a private attorney to represent you in this case, and the United States Magistrate supervising the pretrial phase of this case has directed us to advise you that a decision must be made about who will represent you no latter than October 1, 1981. If you choose initially to have us represent you, you may later retain private counsel (with the court's approval), and we will fully cooperate with that attorney to insure a smooth transition in representation. However, you must pay for the attorney yourself; although in certain circumstances the Department of Justice will pay for outside counsel to represent 89-232 O 82-5 individuals, these circumstances are not, to date, present in this case. The information contained in this letter is not meant to alarm you unduly about this case or to imply that you make any particular decision about representation. Department of Justice guidelines now require that this type of disclosure be made to every federal employee whose request for representation by a Department of Justice attorney has been granted. You should understand that our office is commited to vigorously defending this action on behalf of the government, Director Webster, and others personally named as defendants. I look forward to discussing the case with you after you have had a chance to review this letter. As mentioned, we will try to arrange a group meeting at the New York Office and follow that up with individual meetings as necessary. If and when you determine that this office will be representing you, please sign your copy of this letter as an acknowledgment of your receipt and understanding of the information contained herein and return it to the undersigned as soon as possible. Senator GRASSLEY. If there is no objection, if I could call the next two witnesses up at the same time and listen to both testimonies before we ask questions. My reason for doing that is because I just got a message that I might have a vote in 15 minutes and at least I would like to have the chance of hearing your testimony all at once. Mr. McDONALD. I think that Senator DeConcini, who is a member of the Judiciary Committee and from your home State will certainly be interested in your comments on this legislation and I'll make sure that he has a copy of your testimony so that he can study it in real detail. And I hope that you would be willing to talk to him about this legislation as well. And also, Mr. Cummings, you represent the National Association of Former U.S. Attorneys, is that right? Mr. CUMMINGS. That's correct. Senator GRASSLEY. We have deliberately attempted to have a number of U.S. attorneys come to testify before us today because I think that they are in the best position to observe the practical effects of the current system. They have a firsthand view of what the Federal employees go through in suits of this nature. They know what kind of time and hence what kind of money is spent in defending these cases. They know the frustrations that a plaintiff feels in suing a defendant who simply does not have the resources to satisfy the plaintiff's claims. So, I thank you, Mr. Cummings, for coming to represent your association, and I would like to have Mr. McDonald go first and then you and then I'll ask a few questions together. Mr. McDONALD. Thank you, Mr. Chairman. I am indeed honored to have the opportunity to appear here today and particularly gratified that you're the chairman of this subcommittee. I have some in-laws who reside in the State of Iowa and they're very firm supporters of you. STATEMENT OF A. MELVIN MCDONALD, U.S. ATTORNEY, DISTRICT OF ARIZONA, PHOENIX Mr. McDONALD. I would like to somewhat vary from the written materials that I have submitted today and primarily address some of the comments that have been raised in opposition by the American Civil Liberties Union. I became the U.S. attorney in Arizona, 2 months ago and prior to that time I had been superior court judge in Phoenix. In fact, one of my claims to fame was being elected the same night with Justice O'Connor. In Phoenix, Ariz., the Phoenix Police Department, the Maricopa County Sheriff's Department, the Arizona Department of Public Safety, and the Tucson Police Department, all have those agencies of government who have, in effect, implemented what we are seeking by this legislation. These departments self-insure. They assume all obligations in constitutional torts which police officers may get involved in. This was implemented 5 years ago. I, as a superior court judge, had the opportunity to sit and preside over constitutional tort cases. Inter estingly enough, we found some interesting developments that occurred when the cities took this on. First of all, there has not been an increase in constitutional torts committed when private governmental sectors stepped in. The contrary has been the case. I spoke just this morning with the law firm that represents the major police agencies. He indicated that, while law enforcement personnel have increased over the last 5 years, constitutional tort cases have dropped 50 percent. In all of the 5 years as a civil judge that I tried these cases, there were only two constitutional tort cases that were ever brought into my court. In both instances, the police department officers prevailed. In addition to that, he indicated that in all of the history of those cases, only one time has a judgment been rendered against the Phoenix Police Department. The net result is that contrary to the argument that once the Government assumes its obligation, somehow Federal agents will run out and start violating people's personal rights. The contrary has proven to be the case. It has had no appreciable effect. The contrary has been true that there have been no increase in litigation-the litigation has dropped and the results of that have been that the officers have continued to do the professional, quality jobs of investigation that they've always done in the past. It's my feeling that rather than deter officers, what it really does is chill them in the many constitutional decisions which they must make. When we hear the arguments made, somehow certain rights will be lost by this legislation which Bivens gives, I submit, is non sense. When you look at the history of these cases over the last 10 years and stop and realize that you can count successful plaintiffs on one hand, I think, if anything, any reasonable mind would have to agree that this legislation is providing the plaintiffs opportunities that they have never had before. I would respectfully urge passage of this legislation and would be happy to answer any questions. Senator GRASSLEY. Mr. Cummings? STATEMENT OF WILLIAM B. CUMMINGS, DIRECTOR, NATIONAL ASSOCIATION OF FORMER U.S. ATTORNEYS, ALEXANDRIA, VA. Mr. CUMMINGS. Thank you, Mr. Chairman. I also thank you for the opportunity on behalf of myself as well as the association. The National Association of Former United States Attorneys is an organization that now has approximately 300 members. Our current president, Judge Barney Doneilson of your State, was recently asked to speak on behalf of the association, and was unable to be here and asked me if I would attend. I served as U.S. attorney for the Eastern District of Virginia for 4 years, retiring 2 years ago, and am now in private practice in Alexandria, Va., so it was much more convenient for me to attend. This association was formed partly for the reason of addressing legislation where our views might be sought because of our past experience, but that because of our no longer being associated with the Department of Justice our independence of thought might give our remarks slightly more credibility. |