3 First, experience shows that egregious cases are extremely rare. Second, one of the main purposes of the amendment is to improve employee morale and foster good faith, vigorous performance of duty, unimpaired by the threat of personal involvement in a lawsuit. To provide for third party actions so as to cover the rare instances in which they might be appropriate would be counter-productive in terms of achieving this purpose. Moreover, if a third party action against the employee were permitted, the employee would seek to intervene as a matter of right and would request the government to provide him with private counsel, and his presence in the suit would jeopardize the government's control of the litigation. While the statute could, of course, prohibit intervention, such a provision would hardly be conducive to improved employee morale. Finally, the overwhelming majority of federal employees would be unable personally to satisfy a judgment of more than a very modest amount. Thus, to permit a lawsuit over against them would be essentially a punitive gesture. For all of these reasons and in view of the deterrent effect of possible disciplinary action and even criminal prosecution, it seems undesirable and unnecessary to subject individual government employees to the added threat of civil liability. As noted above, in addition to protecting government employees against individual lawsuits, the proposed legislation would expand the bases upon which the United States could be sued in lieu of its employees. It would do so by creating a statutory cause of action against the United States for the constitutional torts of any of its agents. Such a cause of action presently exists only for certain constitutional torts (assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution) committed by investigative or law enforcement officers. It should be noted, however, that this expansion of government liability will not result in the protection of all federal employees from individual lawsuits based on acts committed during the course of their employment or under color of their office. This is because the exclusivity provision of the bill is applicable only if there exists a remedy against the United States and because, even if the proposed amendments are enacted, suits against the United States will not be possible under the circumstances enumerated under Section 2680 of the Federal Tort Claims Act. Among the types of suits against the United States that would continue to be prohibited under that section are actions for libel, slander, misrepresentation, deceit or interference with contract rights (28 U.S.C. 2680 (h)). Thus, assuming that no constitutional violation was involved, government employees would continue to be individually liable in such cases. In addition to expanding the bases for suits against the government, the bill would also enhance the remedy available to victims of constitutional torts committed by government employees; they would be entitled to at least liquidated damages of $1,000 (where actual damages in a greater amount cannot be proved) and could recover a reasonable attorney's fee and other litigation costs reasonably incurred. The provisions for recovery of liquidated damages, attorney's fees and litigation costs are based on the existing civil remedy against individual agents provided in the wiretap statute, 18 U.S.C. 2520. That statute would be "repealed" or modified with respect to suits based on acts performed by federal employees within the scope of their office or employment or under color of such office or employment. The victim's remedy in such cases would be against the United States. This approach is necessary in order to eliminate the necessity of employing private counsel in such cases and to avoid creating an unwarranted distinction between violations of the wiretap statute and other constitutional torts. The alternative provision in 18 U.S.C. 2520 for compensation in the form of liquidated damages to be computed at a rate of $100 per day for each day the violation continues has been included for wiretap violations. The provision for punitive damages now found in the wiretap statute has not been included in the proposed amendment. The Federal Tort Claims Act has always precluded the award of punitive damages against the United States. Since the victim's remedy will no longer be against the individual who wronged him, but rather against the government, the imposition of punitive damages would penalize only the taxpayer without serving any meaningful deterrent purpose. Moreover, as pointed out above, the potential threat of disciplinary action or criminal prosecution should be sufficient to prevent the kind of excesses that would justify an award of punitive damages against an individual. Under this bill, state law would be applicable to any liability question in an action based upon traditional common law negligence. In suits based upon constitutional tort theories, federal law would be determinative. Federal law obviously should govern the interpretation of the Federal Constitution. As has always been the case, state law would govern the measure of damages in traditional common law tort cases. State law would also govern the measure of damages in constitutional - 5 tort cases. While it could be provided that federal law should govern the damages issue in cases involving constitutional violations, there is very little federal law of damages in this area and it seems undesirable to burden the federal courts with the task of fashioning such law when state damage law would be appropriate in almost all cases. The only exception to the application of the state law of damages is that provided for liquidated damages for constitutional torts discussed above. With respect to defenses to liability, the draft bill provides, as does the existing wiretap statute, that in constitutional tort cases "a good faith reliance on a court order or legislative authorization shall constitute a complete defense." In order to alleviate concern that this language might preclude the United States from asserting a good faith, reasonable belief defense on any basis other than a court order or legislative authorization, the bill explicitly provides that this provision is to be "without any effect or limitation upon any other defenses. Because the good faith, reasonable belief defense is a developing area of law, it is believed advisable to allow opportunity for further development rather than to attempt more specific statutory language. The question of whether all defenses available to an agent of the government in a suit against him personally should also be available to the government itself is not without controversy. With respect to constitutional violations, it is the view of some that recovery should be permitted against the United States irrespective of defenses available to its agents. Essentially, this view is predicated on the belief that, as between the innocent citizen damaged by the constitutional wrong of a mistaken government agent and the government who set the agent in motion, it is more equitable to require the government to pay for the loss. The fact that the government routinely accepts liability for the negligent conduct of its agents, makes it difficult to explain why it does not also accept liability for the intentional, albeit mistaken, constitutional torts of those agents. The draft bill provides for actual or compensatory damages in such cases. Mechanically the statute provides that, upon the certification of scope of employment or color of office, a lawsuit filed in state court will be removed to federal district court. Then, regardless of whether the suit was initiated in state or federal court, the United States will be substituted as the party defendant in place of the individual federal employee. The suit will then proceed just as if it had been initiated against the United States under the Federal Tort Claims Act. 6 The Federal Tort Claims Act requires that one must present a claim administratively to the agency or department that was responsible for the conduct in question and allow that department or agency an opportunity to investigate and reach a decision on the claim prior to filing suit. This requirement will continue to apply to all such Federal Tort Claims Act suits. It is my view that this legislation is most urgently needed, both by government employees who may be defendants in possible tort actions and by the public who may be plaintiffs in such actions. The Office of Management and Budget has advised this Department that enactment of this legislation would be consistent with the Administration's program. Sincerely, enzy B Beee Attorney General Mr. CONGRESS -SESSION S. (NOTE-FI in all blank Ines except IN THE SENATE OF THE UNITED STATES introduced the following bill; which was read twice and referred to the Committee on A BILL To amend title 28 of the United States Code to provide for an exclusvie remedy against the United States in suits based upon acts or omissions of United States employees, and for other purposes. Insert title of bill here) 1 Be it enacted by the Senate and House of Representa 2 tives of the United States of America in Congress assembled, SEC. 2. Section 2672 of title 28, United States Code, is amended by inserting in the first paragraph the following language after the word "occurred" and before the colon: ", or where the claim sounding in tort for money damages arises under the Constitution of the United States when such employee of the Government is acting within the scope of his office or employment, or under the color thereof, such liability to be determined in accordance with applicable Federal law". |