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Were those FBI agents that you were saying had purchased malpractice-type insurance?

General BELL. It is FBI agents. I have not got any hard evidence, but I have a hard feeling that the FBI agents were very worried about civil suits. Of course, I want them to be certain to get authority. But that does not keep them from being sued.

You see, a civil suit is a devastating thing, given modern rules of procedure, discovery process. A lot of them live in fear or dread of being sued, of being wiped out just paying lawyers.

Senator METZENBAUM. I am having difficulty understanding where they would have problems in their proper activities.

General BELL. Not everyone agrees what is proper and not proper; that is how you get into a lawsuit.

Mr. JAFFE. Senator, about 2 years ago, I was asked to go to a meeting at HUD. I was asked to attend a meeting at HUD shortly after a suit was instituted against two HUD inspectors for the damage to a house adjoining one that had been taken over by HUD.

Their liability was predicated on their not having performed their duties in inspecting the house that HUD had obtained to see to it that it had no fire hazards, that the place was relatively clean of anything that might create a fire. The broad description of their duties certainly would have included that.

When a fire did break out, which originated in the HUD-owned, unoccupied house and spread to the house next door, the owner of the house next door sued the two agents for all the damages he suffered on the ground that they had negligently performed their duties.

He sued them individually. He did not sue the United States. When they were told that, if a judgment was obtained against themwe tendered our representation—that it would be their responsibility, HUD called for a meeting which I attended. I explained what the law was. I explained that we had every hope that we would be successful in the case; our record has been very good on that.

I was told then that their inspectors were going to either quit their jobs, would require indemnity, or they would not do their duties at all. They would refuse to go out to these places. Or, if they did go out to these places, it would be very costly to HUD because they would take the place apart. They would either not do their duties or do them in such an oppressive manner that the interests of the Government would not be served.

Senator METZENBAUM. What was the bottom line? What finally happened?

Mr. JAFFE. What finally happened was that we got the case dismissed.

General BELL. There are not too many of these cases lost in the end. But it is a matter of paying the lawyers and managing the case that gets to be the problem.

Mr. JAFFE. It is the conflict cases that give us the problem-not when we represent; I am not trying to sound conceited.

General BELL. These FBI agents I talked to were not worried about losing the cases in the end. They are willing to be put in the hands of a jury. But they know what lawyers cost. They read about all these lawyers' legal fees. They do not have the money to pay the lawyers.

Senator METZENBAUM. Is it the department's intention to make various exceptions in section 2680, such as discretionary acts and acts pursuant to statute or regulation, inapplicable to constitutional torts?

Mr. JAFFE. Yes.1

Senator METZENBAUM. With respect to the amendments referred to in the questionnaire which we submitted to you, have all of them been submitted today?

Mr. JAFFE. All of the responses have been submitted.
Senator METZENBAUM. You have a lot of amendments with you?

Mr. JAFFE. I have some amendments with me. I do not know whether I am free to give them to the subcommittee or even if the Attorney General is, because I think we have to run this through the Office of Management and Budget, except for certain clarifying ones.

Senator METZENBAUM. We will not press you on it. Whenever you are ready, we will be ready.

Mr. JAFFE. I do have them prepared.

Ms. WALD. We have informed OMB about them, so you are free to submit them.

Mr. JAFFE. I am told that I am free to submit them because we have cleared them through OMB.

I have a copy of those that I prepared. These are unintelligible unless you can look at the bill at the same time.

Senator METZENBAUM. Why don't you or Ms. Wald work them out?

Mr. JAFFE. I will turn them over to Mr. Schwartz.

[The amendments submitted by the Department appear at p. 48 of the appendix.]

In answer to your last question, the amendment that we propose for all the exemptions that remain in Section 2680—it is my proposal to amend 2680, the preamble which I have here, so that it will read "except for tort claims arising under the Constitution of the United States, the provisions of this chapter and section 1346(b) of this title shall not apply to, and the United States shall not substitute itself

I am following that preamble. Then you have the exceptions listed.
We do amend subdivision (h) of that section.
Senator METZENBAUM. We will get into that.
Mr. JAFFE. You will get into that.

Senator METZENBAUM. My final question is this. The bill is to apply to all pending cases. Is there not a constitutional question with respect to making it retroactive?

Mr. JAFFE. We have researched that. We concluded that there is not-that is, there may be a constitutional question; but we believe that it can be done. That is not free from doubt. We would expect the retroactivity provision to be litigated.

Senator METZENBAUM. Will you make available to the subcommittee that legal memo?

in." 2

1 See Department amendment on pp. 48, 49. 2 See p. 49 in the appendix.

Mr. JAFFE. Yes.
General BELL. Surely.

Mr. JAFFE. I would like to say that we would be able to prepare a legal memo.

Senator METZENBAUM. I thought you said that you had a legal memo.

Mr. JAFFE. We do, but I do not know whether I would like to submit what we have or whether I would like to prepare a new one.

General BELL. We would like to get an opinion from the Office of Legal Counsel anyway.

I hope it can be made retroactive because we need to dispose of a lot of the suits we have.

[The memorandum referred to will be found on p. 139 of the appendix.]

Senator METZENBAUM. I am sure you recognize-or you would not be working on the legal question—that there is a valid legal question.

General BELL. Yes.

Senator METZENBAUM. The subcommittee would certainly want to have that.

[The letter from the Justice Department appears at p. 52 in the appendix.]

Having said that, Mr. General, I think that that concludes our inquiry for this morning. We are very grateful to you for being

The subject that we have before us is one that is provocative and has many aspects to it.

Senator Abourezk has some written questions that he will be submitting to you. [See pp. 104–139.) Staff may have certain additional questions. The staff will be prepared to work with vour staff relative to seeing whether we can resolve all or most of the questions to see whether or not then we have certain remaining ones or where we are at that point.

Thank you very much.
General BELL. Thank you, Mr. Chairman.
Mr. JAFFE. Thank you, Mr. Chairman.
Senator METZENBAUM. We adjourn.

[Whereupon, at 10:55 a.m., the meeting was adjourned, subject to the call of the Chair.]

with us.

APPENDIX

LETTER OF ATTORNEY GENERAL TO VICE PRESIDENT MONDALE,

SEPTEMBER 16, 1977

IDENTICAL SUBMISSION
TO THE SPEAKER

Office of the Attorney General

Washington, 1. C. 20530

September 16, 1977

The Vice President
United States Senate
Washington, D.C. 20510

Dear Mr. Vice President:

Attached for your consideration and appropriate reference is a draft bill "To amend title 28 of the United States Code to provide for an exclusive remedy against the United States in suits based upon acts or omissions of United States employees, and for other purposes.'

The purposes of the proposed legislation are threefold: first, to provide the victims of common law and "constitutional torts" committed by federal employees with a remedy against a financially responsible defendant; second, to protect federal employees from suits for money damages arising out of the performance of their duties; and, third, to eliminate the need for the Department of Justice to hire private attorneys to represent individual federal employees against whom such suits might be brought. The proposed bill would achieve these purposes by expanding the bases upon which the United States can be held liable for the conduct of its employees under the Tort Claims Act and by making suits against the government the exclusive civil remedy in such cases.

The concept of immunizing federal employees from suits based upon the performance of their duties is not new. Several existing statutes provide, on a piecemeal basis, immunity to specific categories of federal employees such as those who operate motor vehicles and medical and paramedical employees of some, but not all, government departments and agencies. This bill would expand that immunity so as to protect all federal employees in situations in which a remedy was available against the government.

Under the draft bili, in suits alleging traditional common law torts, the government would be liable -- and the federal employees immune if the employee was acting within the scope of his office or employment. The determination of

2

whether the employee was acting within the scope of his office or employment would be made on the basis of state law, just as it has been during the thirty years that the Tort Claims Act has been in existence. In suits alleging constitutional violations, however, the basis of government liability and, consequently, of employee immunity would be broader; liability would arise if the employee acted "under color of" his office or employment, even though not "within the scope of" his office or employment. It might be possible to describe, with greater specificity than by use of the phrase "under color of" the circumstances under which the government will be subject to, and the employee immune from, suits alleging constitutional violations. It does not seem wise to attempt to do so, however, since any such attempt would probably result in the omission of situations not now forseeable. Procedurally, the Federal Tort Claims Act provides that the Attorney General is to certify in each case that the individual employee was acting within the scope of his employment or under the color of his office in order for the employee to have immunity. The flexibility that this procedure provides seems preferable to a statutory designation of the parameters of the activities that might be engaged in under the color of an employee's office. Moreover, an individual plaintiff would be hard pressed to dispute such a certification, since its effect would be to provide the plaintiff with a solvent defendant without in any way diminishing his chances of recovery. Even if a judge were to raise the color of office question sua sponte, the certification by the Department of Justice should be very persuasive on the issue.

It should be noted that this bill would not provide the government employee with absolute immunity from the consequences of his tortious conduct. Rather he would be subject to appropriate disciplinary action where his conduct resulted in the payment of damages by the government. Under such circumstances, the Attorney General would be required by the bill to refer the matter for appropriate investigation and disciplinary action to the head of the department or agency involved. From a deterrent point of view, the prospect of disciplinary action and, if the conduct is criminal, the possibility of criminal prosecution, should be sufficient to prevent irresponsible individual action.

It might be argued that in an egregious case the individual employee should be personally liable in a third party action by the United States. Although the argument is plausible on its face, there are persuasive reasons for rejecting it.

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