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WITNESSES

S. 2117 AND AMENDMENTS

26

Letter of Attorney General to Vice President Mondale requesting intro-

duction of bill amending Federal Tort Claims Act, September 16, 1977---

Copy of S. 2117, Amendments to the Federal Tort Claims Act--

Amendment of Chairman Eastland to S. 2117 regarding retroactivity --

Amendments proposed by Justice Department at January 26, 1978, hearing

regarding “good faith,” class actions, and section 2680 exemptions.-

Amendment proposed by Justice Department in letter of April 10, 1978,1

regarding disciplinary procedures.-

Letter of Justice Department to Senator Metzenbaum, April 10, 1978, ex-

plaining disciplinary proceeding amendment to S. 2117 and retroactivity -

S. 2117 with amendments proposed by the Justice Department.--

Federal Tort Claims Act as amended by S. 2117--.

Amendments to miscellaneous statutes (sections 9 and 10 of S. 2117)

Letter of ACLU to Justice Department regarding S. 2117 as introduced,

October 3, 1977..

Letter of ACLU, Common Cause, Public Citizen, Council for Public
Interest Law et al., regarding S. 2117 as introduced, November 21, 1977--

QUESTIONS OF SUBCOMMITTEES REGARDING S. 2117

Letter of Senator Metzenbaum to Attorney General, December 14, 1977,

with questions regarding S. 2117..

Letter of Justice Department to Senator Metzenbaum, January 20, 1978,

with answers to questions on S. 2117.-

Attachment to letter of January 20, 1978: List of civil cases against

Federal employees.--

First letter of Senator Abourezk to Attorney General, February 7, 1978,

with questions regarding S. 2117---

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Page

114

131

136

139

Letter from Justice Department to Senator Abourezk, March 13, 1978,

with answers to questions of February 7, 1978, on S. 2117-Second letter of Senator Abourezk to Attorney General, March 21, 1978,

with further questions on S. 2117--
Letter of Justice Department to Senator Abourezk, April 20, 1978, with
answers to questions of March 21, 1978, on S. 21172 -

MISCELLANEOUS EXHIBITS
Memorandum of Office of Legal Counsel, Justice Department, April 8,

1978, on retroactive application of S. 21172-..
Excerpt from Final Report, Senate Intelligence Committee on Amending

Federal Tort Claims Act.
Legislative History of 1974 amendment of section 2680(h) of Federal Tort

Člaims Act (International Torts) --
Senate Report on 1974 amendment of section 2680(h) of the Federal Tort

Claims Act (International Torts) --
House floor debate on 1974 amendment of section 2680(h) of the Federal

Tort Claims Act (International Torts)
“The Federal Tort Claims Act International Torts Amendment: An Inter-

pretive Analysis,” Jack Boger, Mark Gitenstein, and Paul R. Verkuil,

54 North Carolina Law Review 497 (1976) Tort Claims provisions of swine flu bill, 42 U.S.C 2476_ H.R. 10439, amendments to the Federal Tort Claims Act (93d Congress)-

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COURT CASES AND BRIEFS

220

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971)--
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

456 F. 2d 1339 (2d Cir. 1972) -
Birnbaum v. U.S., 436 F. Supp. 967 (E.D.N.Y. 1977)
Avery v. U.S., 434 F. Supp. 937 (D. Conn. 1977) - -
Cruikshank v. U.S., 431 F. Supp. 1355 (D. Hawaii 1977)
Norton v. Turner, 427 F. Supp 138 (E. D. Va. 1977) -
Plaintiff's appeal brief in Norton v. Turner...

263 274 298 308 315 330

2 See letter of April 10, 1978, at p. 52.

AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT:

S. 2117

THURSDAY, JANUARY 26, 1978

U.S. SENATE, SUBCOMMITTEE ON CITIZENS

AND SHAREHOLDERS RIGHTS AND REMEDIES,
AND SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND
PROCEDURE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittees met, pursuant to notice, at 9:30 a.m., in room 235, Russell Office Building, Hon. Howard M. Metzenbaum, chairman of the Subcommittee on Citizens and Shareholders Rights and Remedies, presiding.

Present: Senators Metzenbaum and Thurmond.

Staff present: Herman Schwartz, chief counsel of the Subcommittee on Citizens and Shareholders Rights and Remedies; Irene Emsellem, chief counsel, Subcommittee on Administrative Practice and Procedure; Charles Ludlam, counsel, Subcommittee on Administrative Practice and Procedure; and Patricia Hoff, counsel to Senator Wallop.

Also present: Patricia Wald, Assistant Attorney General for Legislative Affairs.

OPENING STATEMENT OF HON. HOWARD M. METZENBAUM, U.S.

SENATOR FROM THE STATE OF OHIO, CHAIRMAN OF THE SUBCOMMITTEE ON CITIZENS AND SHAREHOLDERS RIGHTS AND REMEDIES

Senator METZENBAUM. Today we open hearings on S. 2117, which amends the Federal Tort Claims Act with respect to constitutional violations by Federal officials.

[A copy of S. 2117 will be found on p. 39 of the appendix. Proposed amendments submitted by Senator Eastland and the Justice Department follow the bill at pp. 44 to 51. S. 2117 as amended appears at p. 52 and the Federal Tort Claims Act as amended by S. 2117 as amended appears at p. 57.]

We are pleased to welcome the Attorney General and others to this opening hearing. Our sole witness today will be Attorney General Griffin Bell, and our hearings will be conducted jointly with the Subcommittee on Administrative Practice and Procedure, chaired by the distinguished Senator from South Dakota, Senator James Abourezk.

In the future, we will be scheduling additional hearings on the bill, at which representatives of the community and other Government agencies will be heard. Because the bill is still in the process of

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being modified by the Department of Justice, it seemed appropriate to defer such testimony until the Department's final product is available for consideration.

The bill has been prepared by the Department of Justice and is an administration proposal. Its most significant feature is this: in cases where Federal officials have violated a person's constitutional rights, that person will be able to sue the United States—which waives sovereign immunity for these matters—but not the individual official. This is the reverse of the present situation, as we understand it. The administration has proposed this bill because it will eliminate the need for the Government either to defend the individual employee or—where the official may be guilty of a criminal act—to obtain outside private counsel for him or her, at great expense. The Government has also stressed that such suits impair morale of Government employees.

In return for removing the opportunity to sue the individual officials, the bill would provide for a remedy directly against the United States, and the possibility of some kind of administrative remedy.

This bill has occasioned a great deal of criticism and discussion. Common Cause, the American Civil Liberties Union, and many others have raised many questions about the bill, both in general and with respect to details. A copy of two letters setting out some of these criticisms and questions has been provided the subcommittee and will be made a part of the record of this hearing.

[The letters will be found on p. 70 and p. 74 of the appendix.]

The fundamental issue comes down to this: if damages can no longer be exacted from individuals who violate constitutional rights, what alternative sanctions can be imposed on such officials? Are administrative remedies available and adequate? What remedies are available against former employees and presidential appointees? Does this bill create a risk that there will be no sanctions at all to deter grave constitutional violations, no matter how outrageous or unjustified they are?

These are the most basic issues. In addition many questions have been raised about details of the bill. Our subcommittee submitted some of these questions to the Department on December 14, 1977, and received a set of replies dated January 20, 1978; they will also be made a part of the record. We appreciate the Department's cooperation in this matter and both the subcommittee questionnaire and the Department's replies will be made a part of this record.

[The questions will be found on p. 80 and the answers on p. 90 of the appendix.]

Mr. Attorney General, we are eagerly looking forward to your testimony. Senator Abourezk, who was to be here, cannot be here. But he does have some questions to which he would like written responses. And his opening statement will be inserted into the record at this point.

[The questions submitted by Senator Abourezk on February 7, 1978 will be found on n. 104 and the answers returned by the Justice Department on March 13, 1978, will be found on p. 114 of the appendix. A sec

1 See letter of Attorney General to Vice President Mondale of September 17, 1977, at p. 26 in the appendix.

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