PREPARED STATEMENT OF WILLIAM H. TAFT IV Mr. Chairman and Members of the Subcommittee: I am pleased to appear before you today to present the views of the Department of Defense on S. 1775, which would substitute the United States 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. Before turning to specific incidents in which actual or threatened constitutional tort lawsuits have jeopardized the ability of the Defense Department to perform its mission, I would like to highlight several provisions of the legislation that are especially welcome. First, S. 1775 would make the Government the exclusive defendant in tort actions based on common law as well as constitutional theories if the Attorney General certifies that the challenged act or omission of the employee was within the scope of his employment. The Attorney General's certification would be conclusive, but if the Attorney General does not reach a decision, the employee may petition the court prior to trial to issue the certification. This approach is far preferable to the present situation, in which all federal employees are personally vulnerable to constitutional tort actions. In the area of common law liability, there is currently a crazy-quilt of statutory provisions. While some employees, such as drivers and certain physicians, may not be sued in tort for actions or omissions within their scope of employment, others, such as Presidents, Members of Congress, and customs collectors, are not so lucky. S. 1775 would correct all of that, by interposing the United States Government as the defendant in common law and constitutional tort cases. Second, the proposed legislation would retain defenses available to the individual employee, in addition to preserving the Government's own defenses. This would enable the Government to defend against a claim by asserting, for example, the qualified immunity of the alleged tort-feasor or his reasonable good faith belief in the lawfulness of his conduct. Since the Government is placed in the position of the challenged employee, it ought to be able to invoke all of the employee's defenses. This is especially important in the context of S. 1775, since the legislation would require the Attorney General to forward cases that are lost or settled to the head of the employee's agency. The agency head would then be obliged to undertake an administrative investigation or disciplinary action if appropriate. Significantly, retention of individual and governmental defenses would merely preserve the present position of plaintiffs in litigating constitutional tort actions. Third, under S. 1775, the current Federal Tort Claims Act provisions regarding attorneys' fees would be extended to constitutional tort actions. This means that successful plaintiffs would be entitled to attorneys' fees on a uniform basis, regardless of whether their cases rest on common law or constitutional claims. To permit lawyers alleging constitutional theories to obtain larger fees than those bringing common law cases would encourage artful pleading without necessarily affording additional protections to plaintiffs. In short, 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 ensure that the Government is able to manage the defense of tort cases that attack the official conduct of its employees. 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 has paid more than two million dollars 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, 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 decision-making processes, while actual cases divert Department of Defense employees from their primary mission, the protection of the 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. Because of its highly sensitive functions, the National Security Agency must be especially careful that its employees are fully dependable. In achieving this goal, supervisors, personnel administrators, personnel security administrators, psychologists and their assistants 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, partially as a result 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. Psychologists who must assess the reliability of applicants and employees are particularly troubled by the specter of personal liability. Their judgments must be unbiased and unfettered if they are to make accurate assessments of the emotional stability and reliability of current employees, applicants, and others with access to sensitive cryptologic information. The decision on whether an employee or applicant meets the psychological standards for employment at the National Security Agency is based solely on the psychologist's clinical judgment. Understandably, such judgments require the drawing of fine lines. 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 the Military Departments have also been sued because of a 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 undergo mental evaluations measuring his fitness for further military service. Because of his condition, his supervisors also deleted his name from a promotion list and withdrew his bonus pay. Even though these actions were based on the best professional judgments of his doctors and commanders, the physician sued ten Army and Navy officers in their individual capacities. These officials must not only try, to determine how best to deal with an individual with serious emotional problems but also defend their decisions in federal court. A second matter involved a female civilian employee who was a temporary equal employment opportunity counselor at an Army post. She applied for a promotion, but another, more qualified woman was selected. The employee also applied for a different, permanent equal employment opportunity position. She was selected for this job, which carried greater opportunity for promotion. Nevertheless, she has sued her supervisor and the civilian personnel officer in their personal capacities. Thus, these officials find themselves forced to defend their actions in federal court against a plaintiff seeking large damages for decisions made in good faith. In addition, the plaintiff has also named the Secretary of the Army as a defendant in his personal capacity even though he has had no direct contact with the challenged personnel actions. case illustrates the vulnerability of senior officials to hectoring suits brought by dissatisfied employees. This Yet another case that went to trial concerned a Navy captain and a GS-14 supervisor who allegedly violated the plaintiff's fifth amendment rights in connection with, among other things, marginally satisfactory performance ratings, letters of caution and reprimand, and a suspension. Although their requests for representation were granted by the Department |