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Under the proposed legislation, the United States could not raise the good faith of its employees as a defense to liability for constitutional torts. As a practical matter, the liability of private citizens to recover damages for constitutional torts would be greatly increased if they need only prove violation of their constitutional rights regardless of the good faith of a Government employee.
The bill assures a monetary recovery for constitutional torts by providing for liquidated damages where actual damages are small or nonexistent. Under present law, a plaintiff must usually establish concrete injury to receive damages. Such proof is often impossible in the case of nonviolent conduct involving violations of constitutional rights which are of an intangible nature. The bill would remedy this inequity by providing for the payment of liquidated damages upon the showing of a tortious constitutional violation alone.
I view the Tort Claims Act amendments as one of the most important pieces of legislation that I have proposed from the standpoint of both our country's citizens and its employees. The legislation attempts to strike a difficult and careful balance between redressing Government wrongs suffered on occasion by individual Americans and the undisputed need to permit our Federal employees to conduct the affairs of Government in an uncowardly manner. The interests are very competitive ones. No piece of legislation can fully accommodate one without impairing the other. Under current Federal law, neither interest is being well served. I believe, however, that the bill before you goes a long way to strike as satisfactory an accommodation of both interests as I have been able to find.
This concludes my overview statement, Mr. Chairman. I and the other Department officials present will be happy to answer any questions the subcommittees may wish to raise.
Senator METZENBAUM. General Bell, what is the aegis of this bill? How did it develop ? Did it come about by reason of the expenses of hiring private attorneys and a rapid escalation of those costs? Was it the fact that various Government employee organizations came in and said that this is becoming a special problem?
I am not questioning the validity of the legislation in toto. Rather, I am saying, how did the Attorney General's office happen to draft this bill? It hasn't been before Congress before; has it?
Mr. JAFFE. Excuse me. Yes, it has. We introduced a similar billnot quite as expansive, but to accomplish the same purposes—in 1973 in the 93d Congress. The bill was assigned number H. Ř. 10439, I believe. And a similar bill was introduced by a Member of the Housean identical bill-early in this session. [H.R. 9219] The problem is longstanding.
Senator METZENBAUM. I guess that still does not answer my question. It does answer
General BELL. Let me answer that since I'm the one who got it introduced this year.
I did not know about the bill Mr. Jaffe is speaking of.
When I first became Attorney General I was told we owed about $4 million in attorneys fees to private lawyers, obligations undertaken by the previous administration. I started checking up; it de
i See copy of H.R. 10439 at p. 215 in the appendix.
veloped that that figure was highly exaggerated. Nevertheless, we did owe money to a number of outside lawyers. I started trying to find out how we happened to get these lawyers.
Some we got because a defendant on a civil suit was under investigation under criminal allegations; so, we had a conflict. We could not be prosecuting and defending at the same time. At least that was the ruling that had been made by Attorney General Levi.
Others were far more complicated. We might have a case, let's say, of 15 or 20 defendants. Some defendants would be agencies; some, individuals. There might be some conflict in positions of some of the defendants. So, we had to get outside counsel.
In one suit-I have forgotten the name of it—I had to get an outside lawyer to interview all the defendants to see if there was any conflict in the positions before we could decide about getting outside counsel. We were able to go forward with that case—I was toldwithout getting outside counsel. So, it is terribly complicated.1
I visited FBI offices around the country. I found out that the agents were buying liability insurance-something like malpractice policies—because they were so worried about civil suits.
Then the last thing that happened: I was being brought these papers to sign substituting the United States as a party for the drug manufacturers who made the swine flu shots. Congress, in its wisdom, passed a law substituting the United States as defendant anytime a drug manufacturer was sued.? It struck me as rather odd that we would do that for drug manufacturers, but we would not do it for our own employees.
So, that was some of the background of it. I directed that we get a bill drawn and get it introduced. I went to see the chairman of the Judiciary Committee, Senator Eastland. I mentioned it to him, and I also mentioned it to Chairman Rodino. I mentioned it to other people. I did not find anybody opposing it; so, we went forward.
I am glad to know about the other legislation that Mr. Jaffe mentioned. But, until this moment, I thought this was a product of my own imagination.
Senator METZENBAUM. I think, Mr. Jaffe, I might correct that. The other bill was not constitutional violations.
Mr. JAFFE. Yes, sir, it was; it included constitutional violation. It was an exclusivity bill. It made the United States the exclusive defendant in both constitutional and common law torts.
General BELL. One other fact I left out that persuaded me: We had one case where we were liable. There was clear liability. I said, well, it seems to me we ought to have some arrangement where the Government could just pay these damages and just admit liability. You know, if you are wrong you ought to say that you are wrong. I found out we could not do that. You cannot get individuals to do whatever you tell them to do sometimes.
Cointel would be a good set of cases. If somebody sued you on Cointel tort, and the Government was the defendant-in a lot of those cases I would adınit liability. You would have long trials for
1 See “Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Lawsuits,” staff report of Subcommittee on Administrative Practice and Procedure.
2 See copy of swine flu bill at p. 212 in the appendix.
damages whereas, under these liquidated damages provisions, you pay damages.
It seems to me that would be in the interest of the country, particularly at this time where we are in the tail end of the healing process, as I call it. I would like to clean up a lot of these things that we have had in the past. This would be a way to do it.
Senator METZENBAUM. Of the accumulation of legal fees that you had facing you when you came in, what percentage of the total would you say came about by that which we might say were Watergate related ? Were any of them, or were many of them!
General BELL. Mr. Jaffe?
Mr. JAFFE. None of those at that time were related to Watergate.
Senator METZENBAUM. Most of Cointel
Senator METZENBAUM. The thrust of my questioning has to do with whether or not this is largely a temporary problem growing out of a series of revelations of unconstitutionality or unconstitutional acts or violations of law in recent years which we might hopefully think might be behind us in the main. Do you think this is a continuing problem and process ?
General BELL. I think it will be continuing. I think it will continue. We have an unusual number right now, but I think it will continue.
Based upon my experience as a Federal judge, we have a litigious society—take prisoners' suits for example. Prisoners seem to get some therapeutic value out of suing people. They sue a lot of people. I am sued quite often now about things I have never heard of and don't know anything about.
I was accused recently of being a coconspirator in a case that started a long time ago. They just added me, and I never knew there was such a case in existence.
Well, I don't know that I ought to have to be named about something I don't know anything about.
Senator METZENBAUM. I heard you were thinking about it when you were down there in Atlanta before you ever joined the administration.
General BELL. Maybe I was. I do not think it serves any useful purpose to have all these Government people named themselves in these kinds of cases. You have got to get a lawyer to go to court just to handle frivolous cases. It would just give better control.
To answer the question specifically, we will always have some suits against Government agencies; and this is not a bad thing. You know we are more conscious now of our constitutional rights than we have ever been. If a citizen feels denied or deprived or feels that they ought to be vindicated from some constitutional right, why not go to court? And why shouldn't the Government respond? But, at the same time, we have got to be careful to have some disciplinary procedure or device so that the employee will be punished.
In the drug cases—as I understand the law- — we can sue the drug manufacturer if we find they are negligent. We have got to defend the case. But, if they were negligent in the manufacturing process,
we can turn around and sue them. That is one technique that we might use here or just a plain disciplinary procedure.
Then you have got a complication. Sometimes the Government employee has retired or resigned. We have got to find out what we do in those cases. But I would say this. Even in the future, if we don't have as many cases as we are having right at this time, it still would be a good thing to have this law.
Senator METZENBAUM. I think one of the major concerns has to do with the matter of employee accountability. I think this bill should not do anything to cause that not to be a factor.
General Bell. I will agree to that.
In your statement you talk about certain procedures. Could you give us some idea of the kind of procedures you are contemplating under that language?
General BELL. I'll take a shot at it. We will use the FBI for an example because that is probably the most visible agency in the Government for suit purposes.
If there is a complaint now filed against an agent under the procedure set up by Attorney General Levi or, indeed, anyone in the Justice Department, we refer it to what we call the Office of Professional Responsibility. There is such an office in the FBI. They then have an administrative hearing. Or, if I see something myself that I want to refer, that takes that same route.
They impose discipline. It could be a reduction in rank. It can be suspension or reprimand. And then it comes up on appeal to the Attorney General eventually. If the punishment is not high enough, you can send it back. In fact, in a case that was released recently, it was sent by Attorney General Levi-it was referred to the Office of Professional Responsibility for review. Of course, the Department of Justice did not think sufficient action had been taken.
Now, this is already in place—all these kinds of procedures. But, as I understand, there are a lot of instances in setting up procedures so that the person whose rights have been violated can participate in these administrative procedures. That is something we do not have now; that would be a new thing. I do not object to doing that, incidentally.
Senator METZENBAUM. Mr. Attorney General, realistically speaking, is that very effective? You know, there was an issue in this country--we don't hear too much about it now-about whether, if we had a complaint with the police department, the issue should be taken before a civilian review board or whether it should be before the police themselves.
Now the FBI is checking on themselves and their own fellow workers. Whether it is the FBI or any other agency, can Congress and the American people really expect that there will be an independent thorough investigation? I give you an example, one that is in high profile at the moment. The investigation made in-house in the Marston matter has created a lot of public discussion. I am not sitting here judging right or wrong. Suffice it to say that the public media have questioned the fact of in-house investigation.
Yes; it is a step in the right direction that the individual can participate in the hearing. But, going beyond that-for example, there have been a lot of FBI wrongdoings in recent months and years.
How many FBI officers have been disciplined in the course of the past three years, would you say?
General BELL. I do not know, but I can give you figures. There have been some, and there have been people in the Department of Justice. [The information on disciplining of FBI agents follows:]
DEPARTMENT OF JUSTICE,
Washington, D.C., May 11, 1978. Hon. HOWARD M. METZENBAUM, Chairman, Subcommittee on Citizens and Shareholders Rights and Remedies,
Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request that the Department supply statistics reflecting Federal Bureau of Investigation disciplinary action against Bureau agents who were accused of committing so-called constitutional torts.
We have been advised by the Bureau that during 1977, there was a total of 69 allegations against FBI personnel occupying the position of Special Agent or above. No allegations of constitutional tort were made against service support personnel. Investigation determined that no administrative action was warranted in 64 cases due to the fact that the allegations were determined to be unfounded. In 2 cases the personnel involved were disciplined. Of the total number of allegations, 2 were withdrawn; 1 case involved Agent personnel of another agency. I hope that this material will be helpful to the Subcommittee. Sincerely,
PATRICIA M. WALD,
Assistant Attorney General. General BELL. Since you brought up the Marston matter, I would like to respond to that.
I have had myself investigated twice in the last month on incidents arising in the great State of Pennsylvania. The first one was in Pittsburgh, where the New York Times say that I and Mr. Egan, the Associate Attorney General, had obstructed justice in that we were trying to put an unqualified U.S. attorney who was then being investigated by the FBI. I asked that the Office of Professional Responsibility investigate me on that. They have, and they will be reporting soon.
In the Marston matter, there was a charge by Marston—and the media strongly implied—that I knew of an investigation of a Congressman at the time the President spoke to me. I thought that it ought to be clarified inasmuch as I did not know, so I made an affidavit saying that I did not know.
Now, I do not know what else I can do. I could convene a grand jury and go there and tell them that I did not know anything about it.
Then I went further and got affidavits from people under me, which got it up to the point that there was some suggestion that he was a suspicious character; but that was never brought up any higher. So, I think it is very clear that I did not know.
Then I directed somebody to go and get a statement from the President to see if he knew. I do not think that I have heard of an Attorney General doing that before.