SUPPLEMENTAL QUESTIONS TO THE DEPARTMENT 1. On page 7 of your statement you say that the bill would bring 2. constitutional torts under the F.T.C.A. "for the first time." Yet many constitutional torts are already brought as F.T.C.A. S.; What types of constitutional tort cases would, in fact, be brought under the F.T.C.A. by the bill which courts have not yet already accepted as F.T.C.A. cases? You argue that the Department wants constitutional tort suits to be brought under the F.T.C.A. because then the Department could simply "admit liability" (transcript at page 17), avoid retaining private counsel, and relieve federal employees a. Why then has the Department vigorously resisted bringing the cases cited above under the F.T.C.A.? 1 See opinion at pp. 274 to 314. b. c. d. e. f. Why is the Department attempting narrowly to If the Department is, in fact, interested in assur- If the Department, in fact, believes that $1000. is a reasonable minimum recovery in a constitutional tort case, why is it arguing in the Birnbaum case that the $1000 judgment awarded is too large? Wouldn't it cost far less to accept these cases as In accepting these constitutional tort cases as Department litigates the applicability of the F.T.C.A.? g. If these cases are accepted as F.T.C.A. cases, h. i. j. k. aren't plaintiffs already entitled to attorneys If these cases are accepted as F.T.C.A. cases and If these cases are accepted as F.T.C.A. cases, a "good faith defense" by cases such as Norton v. Turner? If the F.T.C.A. can already be construed to cover of the bill to make such suits an exclusive remedy Given the availability of F.T.C.A. jurisdiction for LETTER FROM JUSTICE DEPARTMENT TO SENATOR ABOUREZK, APRIL 20, 1978: ANSWERS TO SECOND SET OF QUESTIONS ON S. 2117 ASSISTANT ATTORNEY GENERAL CIVIL DIVISION Department of Justice April 20, 1978 Honorable James Abourezk Chairman Subcommittee on Administrative Practice and Procedure Committee on the Judiciary Dear Mr. Chairman: I have enclosed the answers to questions you submitted to the Attorney General under cover of your letter of March 21, 1978, concerning S.2117, the Department's proposed amendments to the Federal Tort Claims Act. Enclosure Sincerely, Allen Jarvel BARBARA ALLEN BABCOCK JUSTICE DEPARTMENT ANSWERS TO SECOND SET OF QUESTIONS TO THE DEPARTMENT 1 Question 1. On page 7 of your statement you say that the bill would bring constitutional torts under the F.T.C.A. "for the first time." Yet many constitutional torts are already brought as F.T.C.A. suits under the 1974 amendment to Section 2680 (h) and trial courts have held other constitutional torts not covered by the 1974 amendment to be legitimate F.T.C.A. cases. (e.g., Birnbaum v. U.S., 436 F. Supp. 967; Lamont v. U.S.; Socialist Workers Party v. Attorney General; Black v. U.S., 389 F. Supp. 529; Avery v. U.S., 434 F. Supp. 9373 and Cruikshank v. U.S., 431 Supp. 1355).* What types of constitutional tort cases would, in fact, be brought under the F.T.C.A. by the bill which courts have not yet already accepted as F.T.C.A. cases? 5 Answer 1. It is the Department's view that Congress did not intend the Federal Tort Claims Act to apply to torts sounding in violation of the Constitution, particularly where no comparable common law tort existed. Reliance on the cited district court actions for the contrary proposition is questionable since each involved conduct which, although arguably characterized as a constitutional tort, could also be denominated as a common law tort, e.g., invasion of privacy and trespass. Indeed, with respect to the CIA's mail opening program, courts have split evenly on whether recovery is permissible under the Federal Tort Claims Act." Even assuming that conduct violating the Fourth Amendment, which is at issue in all of the cited actions, does state a cause of action against the United States under the Federal Tort Claims Act, plaintiffs in many pending Bivens actions against government employees allege constitutional torts based on the First, Fifth, Sixth, and Ninth amendments which do not have any common law equivalents (e.g., First Amendment chill on freedom of speech and assembly, denial of due process as a result of discrimination). In the event courts were to recognize the validity of these alleged constitutional torts, none could be brought under the Federal Tort Claims Act as presently worded. In addition, other torts sounding both in constitutional and common law, such as libel and slander (alleged to interfere with the First Amendment right of assembly), may be barred by the present exemptions set forth in 28 U.S.C. §2680. Question 2. You argue that the Department wants constitutional tort suits to be brought under the F.T.C.A. because then the Department could simply "admit liability" (transcript at page 17), avoid retaining private counsel, and relieve federal employees of personal liability. a. Why then has the Department vigorously resisted bringing the cases cited above under the F.T.C.A.? Answer 2a. The Department does not believe Congress has waived sovereign immunity under the Federal Tort Claims Act to actions sounding in constitutional tort. Advocating an opposite view, even if it serves as an expedient means for partially achieving that which is sought by the proposed amendments to the Tort Claims Act, would, of course, not justify a construction contrary to congressional intent, and in any event, it would not provide exclusivity of remedy against the United States and thus avoid either the need to retain private counsel or the negative effect on employee morale caused by the threat of protracted litigation and the possibility of personal liability. Question 2b. Why is the Department attempting narrowly to construe the 1974 amendment to Section 2680 (h), for example in the case of Norton v. 1 See p. 131. 2 See opinion at p. 274. 3 See opinion at p. 298. 4 See opinion at p. 308. 5 The district court in Socialist Workers Party v. The Attorney General, S.D.N.Y., has never ruled that constitutional torts may be persued against the United States under the Federal Tort Claims Act. Three courts have found that mail opening under the CIA's mail opening program does not state a cause of action under the Federal Tort Claims Act. D.D.C. (Norman Hardy v. United States, No. 76-1423); N.D. Cal. (Julius Siebel v. United States, No. C-76-1737); S.D. Iowa (Norman Murphy v. CIA, No. C-76-12). Three Courts have reached a contrary ruling. E.D.N.Y., Weinsten, J. (Birnbaum v. United States, 436 F. Supp. 967; Driver v. United States, No. 77-C-919; Wilson v. United States, No. 77-C-975; Lamont v. United States, No. 79-C-1029; MacMillen v. United States, No. 77-C-597); D. Conn. (Avery v. United States, 434 F. Supp. 937); D. Hawaii (Cruikshank v. United States, 431 F. Supp. 1355). |