provision, the government would be, in effect, the insurer of the actions of any and all of its employees, and literally open the door for a raid on the treasury. In conclusion, the Association endorses the bill in its present form, and urges its passage. Senator GRASSLEY. I want to thank you as well as all of the other people who appeared for helping us to make what I feel is a very valuable record. We're going to have another hearing, a continuation of this hearing, on this legislation on Monday at 9:30 a.m. And again, I want to thank all of you, whether you're people who testified or people who are in the audience listening. Thank you for your patience. This hearing is adjourned. [Whereupon, at 11:08 a.m., November 13, 1981, the subcommittee adjourned, subject to the call of the Chair.] FEDERAL TORT CLAIMS ACT MONDAY, NOVEMBER 16, 1981 U.S. SENATE, SUBCOMMITTEE ON AGENCY ADMINISTRATION, COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 9:30 a.m., in room 357, Russell Senate Office Building, Hon. Charles E. Grassley (chairman of the subcommittee) presiding. Staff present: John Maxwell, chief counsel and staff director, and Lynda Nersesian, counsel. OPENING STATEMENT OF SENATOR CHARLES E. GRASSLEY Senator GRASSLEY. Welcome to the second day of the hearings on S. 1775. Today marks the second day of hearings, which deal with the constitutional tort actions in which the Attorney General certifies that the employee is acting within the scope of his or her employment. Furthermore, subject to some exceptions, the Government would likewise be liable for common law torts. In addition, for the first time the United States could be sued for a Bivens or constitutional tort. The exclusive remedy in such a case would also be against the United States. Last Friday we heard from the Department of Justice, which strongly supports this legislation. Deputy Attorney General Schmults noted that suits against Government employees in their personal capacities have increasingly arisen out of regulatory or personnel actions taken by Federal officials. The Department estimates that there are at present in excess of 2,000 lawsuits pending against Federal employees in their individual capacities. The American Civil Liberties Union testified against this legislation, stating that a Federal Tort Claims Act remedy is neither an adequate nor constitutional substitute for a direct suit against a wrongdoing official. We heard challenges to the ACLU argument based on the Supreme Court language expressly deferring to congressional initiatives in this area. The Court has stated that where Congress has provided a remedy which Congress declares to be a substitute for recovery directly under the Constitution and which it views as equally effective, the Court will defer to such an interpretation. Last Friday we also heard from an Idaho forest ranger who shared his experience of being sued for disposing of what he took great pains to determine was abandoned property. His suit began in 1975, resulted in a plaintiff's judgment in 1978, was appealed and upheld by a circuit court in 1980, and has been remanded by (75) 89-232 O 826 the Supreme Court back to the Circuit Court for the 9th Circuit this past year. Finally, we heard from a number of current and former U.S. attorneys who testified as to the devastating effect that these suits have on a Government employee. These U.S. attorneys are in the best position to view the manpower and Government resources that are necessarily drained in the defense of these suits. Our first witness today is Mr. William Howard Taft, General Counsel for the Department of Defense. Mr. Taft, we welcome you to this hearing and are anxious to hear what you have to say on this very important issue. STATEMENT OF WILLIAM H. TAFT IV, GENERAL COUNSEL, DEPARTMENT OF DEFENSE Mr. TAFT. Thank you, Mr. Chairman. I am pleased to appear before you today to present the views of the Department of Defense on S. 1775, which would substitute the U.S. Government as party defendant in all tort actions against Federal employees who have acted within the scope of their offices or employment. The effect of this legislation would be to shield Federal employees from the harassing and distracting effects of cases involving common law and constitutional torts, allegedly arising from the performance of their official duties. Because such litigation detracts from the effectiveness and efficiency of the Government, the Department wholeheartedly supports the enactment of S. 1775. I would like to present some of the highlights of my statement, Mr. Chairman, and would ask that the statement, as prepared, be included in the record, if that is agreeable to the subcommittee. Senator GRASSLEY. Yes; and for the benefit of other witnesses yet to come, I should suggest that we would appreciate any summarizing. Your entire statement will be placed in the record, if you desire, and the record will be open for 14 days for additional written statements that anybody might want to submit. Also, I would suggest that because of the press of other Senate business, other members of the subcommittee sometimes can't come and you may expect written questions from anybody on the committee. We would appreciate your answering in writing. Mr. Taft? Mr. TAFT. Well, we'll be delighted to answer any questions that come to us, either here or in due course. I will proceed with my statement. The enactment of S. 1775 would protect employees of the Department of Defense and other Federal agencies from the disruptive and onerous effects of defending tort litigation. Equally important, the bill would insure that the Government is able to manage the defense of tort cases that attack the official conduct of its employ ees. As the law now stands, the Government loses that control when it is necessary for it to retain private counsel to represent individual employees whose litigation interests conflict with those of the Government. Passage of S. 1775 would also, of course, save the substantial expense of private counsel fees. Since 1976, the Department of Justice, we understand, has paid more than $2 million in fees to private lawyers representing employee defendants. The need for S. 1775 is dramatically demonstrated by the experience of the Department of Defense. The threat of lawsuits is a daily companion of members of the Department, from the most senior officials of the Office of the Secretary of Defense, including the Secretary himself, the military departments, and the defense agencies, to operational military and civilian personnel in the field. The potential of time-consuming and expensive litigation may distort the Department's decisionmaking processes while actual cases divert Department of Defense employees from their primary mission, the protection of national security. Constitutional tort litigation against employees of the Department arises in a wide range of contexts, running the gamut of the Department's activities and striking against employees of virtually every component. Perhaps the best argument for our need for curative legislation is a description of a sample of constitutional tort issues that have confronted or are now confronting the Department and its employees. I would like to describe several of these cases for you. Personnel decisions are a fertile ground for constitutional tort lawsuits. I am especially familiar with this particular sort of suit, inasmuch as I, myself, was sued for a constitutional tort in my earlier incarnation as General Counsel of the Department of HEW, along with 15 other officials, including three secretaries of the Department. Because of its highly sensitive functions, the National Security Agency in the Department of Defense must be especially careful that its employees are fully dependable. In achieving this goal, supervisors, personnel administrators, and security administrators, among others are particularly vulnerable to claims of personal liability. These professionals are essential to the agency because they perform important roles in personnel security adjudications and in assuring the continuing security necessary to intelligence and communications security functions. Since 1980, as a result, in large part, of the Doe case, agency managers in increasingly larger numbers have requested information about their potential personal liability in constitutional tort litigation, and have asked what can be done to protect them from such liability. The threat of personal liability makes it harder for these officials to make difficult, particularly negative, judgments that are required in light of prudent security concerns. In at least one case, some National Security Agency psychologists have been sued in both their official and personal capacities. In addition, they and their colleagues are particularly concerned about the fact that their private insurance does not protect them against punitive damages. According to the agency, the professional judgments of its staff psychologists may be influenced by their perception of the risk of litigation and personal liability. Employees of military departments have also been sued because of the plaintiff's dissatisfaction with personnel actions. In one such case, an Army physician who was displaying psychiatric problems was recently removed from his residency program in order to un |