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AMENDMENTS OF SENATOR EASTLAND

To extend the provisions of section 2679 of title 28 to judgments entered on or after January 1, 1975.

[S. 2117, 95th Cong., 1st sess.) AMENDMENTS intended to be proposed by Mr. Eastland to S. 2117, a 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, viz: On page 9, line 3, after "Sec. 11.", insert (a)”.

On page 9, after line 5, add the following new subsection:

“(b) Any judgment entered on or after January 1, 1975, against any employees of the Government (as defined in section 2671 of title 28, United States Code) resulting from a suit which, if pending on the date of enactment of this Act, would have been within the purview of subsection (b) of section 1346 and chapter 171 of title 28, United States Code, as amended by this Act, shall, to the extent of the liability of the employee of the Government under such judgment, be deemed to have been an action brought against the United States under such subsection and chapter, as amended by this Act, the United States shall be deemed to have been substituted as a party defendant in lieu of such employee of the Government, and the United States shall, to the extent of the liability of that employee, be responsible for payments necessary to satisfy that liability.".

AMENDMENTS SUBMITTED BY DEPARTMENT OF JUSTICE AT HEARING ON

JANUARY 26, 1978, REGARDING “Good FAITH," CLASS ACTIONS, AND
SECTION 2680 EXEMPTIONS

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1. Amend subparagraph (b) of Sec. 3 by adding in the first proviso, after “$1,000,” and before "except,” on page 2, line 25, the words "plus a reasonable attorney's fee and other litigation costs reasonably incurred."

2. On page 3, line 2, change "in violation of” to “as defined in."

3. On page 3, line 7, delete the language following the colon to the word "sustained" on line 17, and substitute the following:

With the further proviso, however, that the United States may not assert as a defense to a suit against it alleging a Constitutional tort, the absolute or qualified immunity of the employee (except members of Congress, judges or prosecutors or those performing such functions) or his good faith belief in the lawfulness of his conduct.”

4. Sec. 3 is further amended by adding a subparagraph (c) at the end thereof to read as follows:

“Section 2678 of Title 28, United States Code is amended by inserting at the beginning thereof the words 'Except as otherwise provided by the third paragraph of Section 2674 of this title,' and changing the word 'No' to 'no'.”

5. Sec. 4 is amended by inserting “ (a)” after "Sec. 4" on page 3, line 18, and by adding subsection “(b)” to Sec. 4 and further amending Section 2675 (a) of Title 28, by changing the period at the end of Section 2675 (a) to a semicolon and adding the following language--

Provided, however, that upon a claim for money damages arising from the violation of the Constitution of the United States, class actions in conformity with the requirements of the Federal Rules of Civil Procedure may be instituted provided that the claim presented to the appropriate Federal agency expressly asserts the representative nature of the claim and specifically describes the members of the class, the common interests of the claimant and such members, and the basis upon which the claimant believes he can fairly and adequately protect the interests of the class as their representative.”

6. Amend Sec. 6 of the bill by deleting subsection “(d) (3)” of Section 2679(d) or Title 28, on page 6, lines 13 to 15, and renumbering subsection “(d) (4)” on page 6, line 16, to “(d) (3)”.

7. Amend Sec. 8, on page 7, lines 12 to 15, to read as follows:

"Sec. 8(a). The preamble to Section 2680 of Title 28, United States Code, is amended to read as follows:

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"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 in—"

(b) Section 2680(h) of Title 28, United States Code, is amended to read as follows:

(h) any claim arising out of libel, slander, misrepresentation, deceit, or interference with contract rights."

AMENDMENT SUBMITTED BY DEPARTMENT OF JUSTICE ON
APRIL 10, 1978, REGARDING DISCIPLINARY PROCEDURES

1

Title 5, United States Code, is amended by adding a new chapter 78 containing new sections 7801, 7802, 7803, 7804, 7805, and 7806 as follows:

"Section 7801. Definitions
For the purposes of this chapter:

(1) “Person” means any natural person subject to the Constitution of the United States;

(2) "Federal agency” means a Federal agency, as defined in section 2671 of title 28, United States Code, which employs or employed an "employee" defined in subsection (3) of this section;

(3) "Employee", unless otherwise described, means a present "employee of the Government” as defined in section 2671 of title 28, United States Code; and

(4) “Disciplinary Action” means removal, suspension without pay, demotion, admonishment or reprimand for such cause as will promote the efficiency of the service.

Section 7802. Administrative inquiries

(a) (1) Where a claim filed by a person under section 2675 of title 28, United States Code, arising under the Constitution of the United States, results in an administrative award, compromise or settlement paid by the United States, and except as provided in section 7803, such person within 30 days of execution of the award, compromise or settlement, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(a)(2) Where a civil action brought in any court by a person under section 1346 (b) of title 28, United States Code, on a claim arising under the Constitution of the United States, results in a judgment against the United States, or a settlement or compromise executed by the United States, and except as provided in section 7803, such person within 30 days after time for appeal of the judgment has expired, or within 30 days after execution of the settlement or compromise, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(b) Within 60 days of the effective date of the regulations described in section 7805 of this chapter, the head of each Federal agency to which such regulations are applicable shall issue rules, regulations, and instructions for initiating and conducting an administrative inquiry requested under subsection (a) (1) or (a) (2).

(c) A person who has requested an inquiry under subsection (a) (1) or (a) (2) of this section ;

(1) May submit a statement, and if a hearing is held, give testimony, pursuant to the rules, regulations, and instructions issued under subsection (b), and shall be notified of the action taken on such request or inquiry and the reasons therefore, and

1 See letter of April 10, 1978, at p. 52 in the appendix. This amendment would add a new $ 12 to the bill.

(2) may, within 30 days from notification of the action of the Federal agency, appeal its action (A) to the Secretary of Defense or his designee if the employee is a uniformed member of the Armed Forces as described in section 101 (4) of title 10 of the United States Code, (B) to the Secretary of the Department in which the United States Coast Guard is operating or his designee if the employee is a member of the Coast Guard, (C) to the head of an agency or his designee with a personnel system under the Foreign Service Act of 1946, as amended (22 U.S.C. 801 et seq.), if the employee is an employee of the Foreign Service, (D) to the head of an agency or his designee with a personnel system under the Public Health Service Acts, as amended (42 U.S.C. 191 et seq.), if the employee is an employee or the Public Health Service, (E) to a reviewing entity or agency designated by the President to review the proceeding concerning an employee engaged in intelligence activities, or (F) to the Civil Service Commission in any other case. Such appeal process shall include de novo review of the acts of the employee which gave use to the request under subsection (a) (1) or (a) (2). Such review shall be conducted pur. suant to regulations issued under section 7805 of this chapter, and shall include the issuance of a final decision with a statement of reasons and a recommendation of disciplinary action if any.

Section 7803. Former employees; present and former Presidential appointees.

With respect to a claim against a former employee or a present or former appointee of the President, a person who has met the requirements of $ 7802 (a) of this chapter shall be entitled to request an administrative inquiry based upon his claim described in subsection (a) (1) and (a) (2) of section 7802 of this chapter by (A) the Secretary of Defense if the former employee or present or former Presidential appointee is a uniformed member of the Armed Forces as described in section 101 (4) of title 10 of the United States Code, (B) the Secretary of the Department in which the United States Coast Guard is operating if the former employee or present or former Presidential appointee is a member of the Coast Guard, (C) the head of an agency with a personnel system under the Foreign Service Act of 1946, as amended (22 U.S.C. 801 et seq.), if the former employee or present or former Presidential appointee is an employee of the foreign service, (D) to the head of an agency or his designee with a personnel system under the Public Health Service Acts, as amended (42 U.S.C. 191 et seq.), if the former enployee or present or former Presidential appointee is an employee of the Public Health Service, (E) to a reviewing entity or agency designated by the President to review the proceeding concerning a former employee or present or former Presidential appointee engaged in intelligence activities, or (F) the Civil Service Commission in any other case. Such inquiries shall result in a written report to be made public not less than 30 days after service of the report on the former employee or present or former Presidential appointee whose conduct has been the subject of the administrative inquiry.

Section 7804. Judicial Review

(a) A person who has obtained a final decision as provided by subsection (c) (2) of the section 7802 of this chapter may within 30 days thereof petition for its review in a district court of the United States which may affirm the decision or may set it aside and remand for further proceedings if the decision is found to be arbitrary or capricious based upon a review of the decision, statement of reasons, and recommended disciplinary action if any, issued pursuant to subsection (c) (2) of section 7802 of this chapter. Such review shall be held in camera for matters specifically protected from disclosure by statute or executive order or if the District Court determines that in camera review is in the interests of national security.

(b) A former employee or a present or former Presidential appointee whose conduct has been the subject of an administrative inquiry under section 7803 of this chapter may within 30 days after service upon him of the report of such inquiry, petition for its review in a district court of the United States which may enjoin the public release of such report if found by the court to be arbitrary or capricious.

Section 7805. Regulations

(a) Except as otherwise provided in this chapter, the Civil Service Commission with the approval of the Attorney General, within 90 days of enactment of this chapter, shall issue such regulations as it deems necessary and appropriate for the implementation of sections 7802–7804 of this chapter. The head of each Federal agency subject to the administrative review provisions of subsection 7802 (c) (2) (F) of this chapter shall comply with such regulations and shall issue rules, regulations and instructions not inconsistent therewith.

(b) The Secretary of Defense, within 90 days of enactment of this chapter, shall issue such regulations as he deems necessary and appropriate for the implementation of sections 7802-7804 of this chapter. The head of each Federal agency which is enumerated in section 101 (4) of title 10 of the United States Code shall, with respect to such uniformed members of the Armed Forces, comply with such regulations and shall issue rules, regulations, and instructions not inconsistent therewith.

(c) The reviewing entity or agency designated by the President for reviewing the conduct of employees or officers engaged in intelligence activities, within 90 days of the enactment of this chapter, shall issue such regulations as it deems necessary and appropriate for the implementation of section 7802–7804 of this chapter. The head of each Federal agency having employees or officers engaged in intelligence activities shall comply with such regulations and shall issue rules, regulations and instructions not inconsistent therewith.

(d) The Secretary of the Department in which the United States Coast Guard is operating, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 7802–7804 of this chapter.

(e) The head of the agency with a personnel system under the Foreign Service Act of 1946, as amended, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 7802–7804 of this chapter.

(f) The head of the agency with a personnel system under the Public Health Service Acts, so amended, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 7802–7804 of this chapter. Section 7806. Miscellaneous

(a) Nothing in this chapter shall affect the rights of an employee to appeal or to seek review or other means of redress of any disciplinary action taken against him which he would have under other provisions of law. However, an employee, who was the subject of a disciplinary action recommended by the Civil Service Commission pursuant to subsection 7802 (c), shall not be required by any other provision of law to appeal an agency disciplinary action to the Commission prior to seeking any judicial review of that action.

(b) If an employee is not entitled under other provisions of law to seek administrative or judicial review of any disciplinary action taken against him, he may in the event a complainant seeks administrative review provided by section 7802 (c) (2) of this chapter, participate in such review and give evidence or testimony if a hearing is held, and to the extent provided by section 7804 of this chapter, petition for judicial review of a final decision if any disciplinary action recommended under subsection 7802 (c) (2) of this chapter is greater than that determined by the employing Federal agency under subsection 7801(c)(1).

(c) Nothing in this chapter shall affect the availability of defenses which an employee may raise in any administrative or judicial proceeding.

(d) Nothing in this chapter shall require a Federal agency to delay its disciplining of an employee, or empower the Civil Service Commission to reduce the severity of disciplinary action imposed by an agency against an employee who would not have a right to seek the Civil Service Commission's review of such action under other provisions of law.

LETTER FROM JUSTICE DEPARTMENT TO SENATOR METZENBAUM, APRIL

10, 1978, REGARDING DISCIPLINARY PROCEEDING AMENDMENT AND RETROACTIVITY

DEPARTMENT OF JUSTICE,

Washington, D.C., April 10, 1978. Hon. HOWARD M. METZENBAUM, Chairman, Subcommittee on Citizens and Shareholders Rights and Remedies,

Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN : Pursuant to your request I am forwarding a draft amendment to S. 2117, a 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 or United States emp.oyees.” [See p. 49]

The draft amendment would establish a mechanism by which the victim of a so-called constitutional tort could initiate and participate in an agency discipline proceeding directed against the employee tortfeasor. We believe that our draft discipline proceeding will prove a more than adequate replacement for the victim-initiated sanctions against employees presumably lost by insulating employees from individual civil liability. The Office of Management and Budget has advised us that it has no objection to the amendment from the standpoint of the President's program.

I am also forwarding, pursuant to your request, a memorandum prepared by the Department's Office of Legal Counsel concerning the constitutionality of section 11 of S. 2117. As you know section 11 would make the bill applicable to all claims and suits pending on the date of enactment.

The memorandum concludes that the only constitutional question presented by the section is whether Congress can extinguish a plaintiff's right to a jury trial in a pending case. There is no constitutional question, the memorandum determines, posed by either the substitution of the United States as defendant or the abolition of claims for punitive damages in pending cases.

You will note that the memorandum presents three solutions to the Seventh Amendment problem caused by abrogating the plaintiff's right to a jury trial in a pending case. If the Subcommittee agrees with the Office of Legal Counsel that there are problems with the retroactivity provision, the option acceptable to this Department would be that which would allow the continuance of trial by jury pending cases against the Government. We would be pleased to work with the Subcommittee staff in drafting such an amendment to the bill.

I trust that having been supplied with the Administration's disciplinary amendment, and our views on the constitutionality of the bill's retroactivity provision, your Subcommittee can now begin mark-up of S. 2117. We, of course, stand ready to assist you in any way that we can. Sincerely,

PATRICIA M. WALD, Assistant Attorney General.

2

S. 2117 WITH AMENDMENTS PROPOSED BY THE JUSTICE DEPARTMENT

[S. 2117, 95th Cong., 1st sess. ] A 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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1346 (b) of title 28, United States Code, is amended by striking the period at the end of the section and adding the following : ", 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.”.

1 See memo on p. 139.

2 Matter proposed to be stricken from bill by Department amendments is enclosed in black brackets. New language proposed for the bill in Department amendments is printed in italic. The Department amendments of January 26 and April 10 are included.

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