his constitutional rights he proves?

Answer 6: Except for wiretap violations for which the amendments make specific provisions, tortious constitutional violations usually result from single acts. To the extent that this may not be so, the assessment of the minimum damage figure must be left to judicial evolution.

Question 6(a): Would the Department support an amendment to the bill which provides "that for each claim arising under the Constitution of the United States, such compensation shall not be less than liquidated damages of $1000" in order to permit a larger recovery of liquidated damages in cases where a series of constitutional violations occurs?

Answer 6(a): Because of the facility in artfully drafting pleadings which claim continuous violations where none exist, we prefer to leave such questions to judicial evolution.

Question 7: Would the Department support a provision allowing a plaintiff in a constitutional torts case to elect to have an advisory jury empanelled to recommend to the judge the amount of damages which should be awarded?

Tort

Answer 7: No. The damages contemplated by the Federal Claims Act are actual and compensatory, not punitive. We recognize, of course, that a court may if it wishes, empanel an advisory jury, and nothing in the proposed legislation would change that.

JURY TRIALS

Question 1: Does the Department oppose permitting jury trials in constitutional tort cases for any reason other than because existing law does not permit juries for common-law torts?

Answer 1: Yes, we oppose for reasons set forth in the answers to Question 7 on this page, above.

Question 2: Are juries informed in Tort Claims Act cases that the federal employee whose conduct is involved is not personally liable?

Answer 2: Juries are not permitted in cases brought under the Federal Tort Claims Act, and I am unaware of any cases against both the United States and its employees where there has been a non-jury trial as to the United States and a jury trial with respect to the individually sued employees.

SECTION 2680 EXCEPTIONS

Question 1: How many lawsuits have been brought under Section 2680 (h) since it was amended?

Answer 1: The following number of cases arising under P.L. 93-253 [amending 28 U.S.C. $2680 (h)] handled by the Torts Section of the Civil Division are set forth below together with the amount of damages awarded to opponents as requested by Question 2 below:

Question 2: What amount of damages has been awarded to plaintiffs in Section 2680 (h) suits?

Answer 2: See Answer to Question 1 above.

Question 3: What is the relative success rate of plaintiffs bringing constitutional tort cases under Section 2680 (h) and similar cases against law enforcement officers in their individual capacity?

$5

Answer 3: We are aware of only two cases in which awards were made against federal employees sued in their individual capacities Halperin v. Kissinger, in which was awarded plaintiffs, and Dellums v. Powell, in which $12 million dollars was awarded. Halperin is on appeal and in Dellums the Court of Appeals vacated the award in part remanding it for a new trial. In view of the uncertain state of the Dellums award, and the proportionately large number of common law "Bivens" actions which have been brought without resulting in any award, it would appear that the "success rate" under $2680 of the Federal Tort Claims Act is significantly greater.

Question 4: Has it been the Department's experience that plaintiffs bring constitutional tort suits against law enforcement officers in their individual capacity even though the officer can raise a good faith defense?

Answer 4: Yes.

"GOOD FAITH" DEFENSE

Question 1: The Department has agreed to delete the "good faith" provision in Section 3 of the bill. Under this amendment can the government still raise a good faith defense in a wiretap case?

Answer 1: No.

SUBROGATION

Question 1: Would the Department support a provision, such as that contained in the Swine Flu bill, giving the government the right to bring civil actions against federal employees to subrogate any damages which the government has paid in a constitutional tort case based on that employee's conduct?

Answer 1: No, although applicable to the swine flu situation, a subrogation provision would not provide government employees with the necessary immunity from civil suit sought by the bill.

LETTER FROM SENATOR ABOUREZK TO ATTORNEY GENERAL, MARCH 21, 1978: SECOND SET OF QUESTIONS ON S. 2117

On February 7, 1977, I submitted to you certain questions regarding
S. 2117, the Department's proposed amendment to the Federal Tort
Claims Act. I have received your March 13, 1978, response to these
questions. I appreciate your providing these responses.

Since that time it has come to my attention that a number of courts
have held that constitutional torts not covered by the 1974 amend-
ments to 28 U.S.C. 2680(h) nonetheless come under the jurisdiction
of the Tort Claims Act. I was frankly surprised to learn this as I
had assumed that the bill brought these constitutional torts under
the Tort Claims Act "for the first time." If it is true that the Act
already covers most constitutional torts, the principal effect of the
bill would appear to be to take away an existing Bivens remedy from
an aggrieved plaintiff and not to substitute a new remedy under the
Tort Claims Act for this Bivens remedy.

In addition I understand that the Department is resisting vigorously
these rulings which bring constitutional torts--even those which
appear to fall under the express terms of the 1974 amendment--under
the Tort Claims Act. I am at a loss to understand the Department's
resistance to these rulings, given the Department's avowed interest
in settling these cases, in avoiding the costs of private counsel,
in compensating plaintiffs, and in relieving federal employees of
personal liability.

This new information raises substantial doubts about the effect
of the Department's bill. I am no longer sure that the effect

Honorable Griffin B. Bell

March 21, 1978 - Page Two

one.

of the bill is to substitute a new accountability system for an old The effect now appears to be to deprive plaintiffs of an election of existing remedies. To resolve this matter, please respond to the attached questions as soon as possible.

Thank you very much for your assistance.

Sincerely,

James Abourezk

Chairman

Subcommittee on Administrative

Practice and Procedure