of Justice, both defendants were extremely anxious about their personal vulnerability to an adverse decision. One of them conferred almost daily with a Navy attorney, expressing his trepidation over buying a new house, going on vacation or taking official travel. At the trial, the plaintiff's case was so weak that the judge granted the Government's motion to dismiss after the presentation of the plaintiff's evidence. The plaintiff then appealed to the Court of Appeals for the Fourth Circuit, which affirmed the district court's decision in a three-paragraph memorandum opinion. Nonetheless, in this case, as in almost all cases where officials are sued in their personal capacities, the chilling effect of personal financial liability for official actions spread to the defendants' colleagues. The legal assistance services offered to military members by judge advocate general corps attorneys have also come under attack. In a pending case, a Marine Corps legal assistance officer in North Carolina gave advice on a separation agreement to an estranged couple. The wife subsequently obtained a court order invalidating the agreement because of a technicality of state law. The husband, a retired military member, then filed a claim with the Naval Legal Services Office alleging legal malpractice and demanding damages. This claim is currently under investigation. The Marine Corps informs me that, as a result of this case, its legal assistance officers are increasingly reluctant to give advice in unsettled areas of the law. Instead, they are referring clients to private attorneys. This has jeopardized the effectiveness of the legal assistance program. For Constitutional tort litigation also has been used to try to hinder the Department in performing its mission. example, a Defense Department contractor brought an action against the Director of the Defense Logistics Agency and several subordinate officials in a regional office for The asserted violations of its constitutional rights under the first, fifth, and ninth amendments to the Constitution. case centered on an undated, unsigned memorandum that was allegedly prepared by Agency officials and, the plaintiff maintained, contained unfavorable characterizations of the contractor. The court found that the substance of the memorandum was not of such a nature as to deprive the contractor of its constitutional rights, nor could the limited use of the memorandum constitute publication. Specifically, the court held that communications with authorized governmental agencies did not amount to publication. Any review of the memorandum in this case had taken place during an investigation made necessary by the contractor's own allegations. In another case, a pilot in the Air Force Reserve was assigned to McChord Air Force Base, Washington. So far as the Air Force knows, he had no regular full-time civilian job, but relied heavily on his military reserve pay, supplemented by compensation for auto repairs and other odd jobs. Throughout the early 1970s, the pilot's performance had provoked increasing dissatisfaction. Virtually all his flights resulted in personality conflicts with fellow air crew or ground crew members, and, in some cases, with commanders. In early February 1975, two Air Force flight surgeons recommended that the pilot be temporarily grounded, pending a complete psychiatric evaluation of his competency for safe flying. They based their recommendations on intensive discussions with the pilot. He then refused to appear for a scheduled flight to the Wilford Hall USAF Medical Center, Lackland Air Force Base, Texas, for the psychiatric evaluation. His grounding continued, and since his primary duty was flying, he was later discharged from the Air Force Reserve. On April 9, 1979, he sued 14 commanders and medical personnel individually for violation of his constitutional rights, seeking $3,500,000. The defendants' motion to dismiss was granted by the district court, but the plaintiff has appealed to the Ninth Circuit Court of Appeals. Three Defense Contract Audit Agency and three Defense Logistics Agency employees are currently defendants in an action in federal district court. In August 1980, the auditors were auditing a claim of a Government contractor, pursuant to an order of a judge of the Armed Services Board of Contract Appeals. The audit disclosed possible irregularities relating to a different case involving the contractor. As a result of this discovery, the Defense Logistics Agency trial attorney petitioned the Board to reopen that case for the introduction of new evidence. Soon thereafter, the contractor sued, alleging that the auditors violated its fourth amendment right against unreasonable searches and seizures. The case has not yet gone to trial. Although the auditors had both contractual authority and Board permission for their audit, they now must endure the personal hardship of lengthy proceedings and possible personal financial liability. As may be expected, the morale of the employees is affected. In addition, since they are being sued for conduct which is representative of the routine work performed by all Defense Contract Audit Agency auditors, the litigation is troubling to the entire audit staff of the Agency. Common law tort actions against employees of the Department have also been disturbing. For example, in October 1979 a civilian employee of the Army Corps of Engineers in Puerto Rico left the bulldozer on which he was working. He was subsequently caught between the bulldozer, which was operated by another Corps employee, and a truck. In October 1980, the injured man brought a two million dollar action against several persons in their individual capacities. One, a supervisory geologist for the Corps, had not even been in Puerto Rico for several months prior to the accident; his role was to select work sites. A second defendant is the resident engineer for a Corps project in Puerto Rico. He was not present when the accident occurred and had no connection with either the accident or the plaintiff and his coworkers. The driver of a drill rig on the truck and the driver of the bulldozer were also sued. Thus, for over a year This case has yet to be decided. These cases are all different, yet they share a common theme: employees throughout the Department of Defense may be personally liable for decisions and other actions taken in good faith and upon a reasonable belief in their legality. If an employee is so unfortunate as to be sued, he must devote substantial time, worry, and perhaps money to defending the case. Even if the employee wins, he loses, because of the anxiety produced by the litigation and the worry of financial disaster. Indeed, an employee-defendant may experience difficulty in obtaining a mortgage or personal loan while his case is pending. The Government also loses, although its costs are measured in timid decision-making, dispirited employees, and wasted energy. S. 1775 would largely eliminate these problems by freeing federal employees who act within the scope of their authority from the personal danger of tort litigation. Employees who abuse their offices would not, however, escape punishment, since this bill contains a mechanism for investigating and disciplining employees whose conduct results in a judgment against, or settlement by, the Government. The Department endorses this balanced approach and urges the Subcommittee to report favorably on S. 1775. Thank you, Mr. Chairman. I would be happy to answer any questions the Subcommittee may have. 89-232 O 82 7 Senator GRASSLEY. Our next witness is Mr. Alan B. Morrison, director of litigation with the Public Citizen Litigation Group, which is a nonprofit corporation. Mr. Morrison, I understand that you have been vocal with respect to this litigation in the past and appreciate your presence here today. STATEMENT OF ALAN B. MORRISON, DIRECTOR OF LITIGATION, PUBLIC CITIZEN, WASHINGTON, D.C. Mr. MORRISON. Thank you, Mr. Chairman. It's a pleasure to be here before the subcommittee today. I have a prepared statement. In accordance with the chairman's instructions, I ask that it be placed in the record in full and I will not read from it but summarize the contents of it. It is my pleasure to appear here today to continue with an important matter on which I began work in 1977. Since the time that the Carter administration first introduced a proposal not dissimilar to S. 1775, a great deal of work and change went into it. A number of areas that were troubling to us initially were substantially changed, as outlined in my prepared statement, and yet we find here today, with S. 1775, that this bill has taken three gigantic steps backward. Before pointing to those three problem areas, let me say that although I have some philosophic reservation about the concept of substituting the United States as a defendant in all tort cases, I believe that, on balance, substitution is a wise idea in the interest of the United States and in the interest of victims of tortious conduct. It is a good idea, however, only if two conditions are met. First, there must be a meaningful alternative remedy and, second, there must be meaningful deterrence. Unfortunately, S. 1775 fails to satisfy either criterion. First, as to a meaningful alternative remedy, basically this legislation would substitute the deep pocket of the United States, plus liquidated damages, for the right to trial by jury and the right to punitive damages, which are currently available for constitutional torts committed by members of the Federal service. Liquidated damages, in our view, are absolutely necessary because in most cases of constitutional torts, unlike common law torts, there are no demonstrably large dollar damages. We don't have situations where negligent automobile accidents or malpractice cause a significant personal injury of the kind which is familiar in tort litigation and which produce substantial judgments. On the other hand, the necessity for liquidated damages also means that by and large in the true constitutional tort case, and I would suggest that many of the cases we've heard today are contract cases masking as constitutional torts which will not long fool many of the intelligent judges we now have, there will be low amounts of actual damages, which indicates a reduced need for a deep pocket. You can always put some zeroes at the end of your clause in the complaint, but most people realize when there's any real possibility of any significant damages. Now, having set the background, it's important to focus on the two problems that I see in the legislation in the meaningful alter |