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ond set of questions sent by Senator Abourezk to the Department on
March 21, 1978, appears on p. 131 and the Department's answers of
April 20, 1978, appear on p. 136 of the appendix.]



I want to thank Chairman Metzenbaum for agreeing to hold this hearing on S. 2117 jointly with the Subcommittee on Administrative Practice and Procedure. Although the bill was referred to the Citizens Rights Subcommittee, of which Senator Metzenbaum is Chairman, the Administrative Practice Subcommittee has substantial expertise and interest in this area. I look forward to working closely with Chairman Metzenbaum during the consideration of S. 2117.

S. 2117 is one of the most significant pieces of legislation to be considered by the Senate Judiciary Committee this year. The bill proposes a fundamentaland potentially threatening—change in the system by which we hold executive branch officials accountable for violating the constitutional rights of American citizens.

My intense interest in this bill results from a six-month investigation which the Subcommittee on Administrative Practice and Procedure has just completed on the Justice Department policy of hiring private legal counsel to represent Federal employees in civil suits alleging the violation of constitutional rights. This investigation will shortly result in the issuance by the subcommitiee, probably on Monday of next week, of a 1,200 page staff report on this subject. The staff report will explain in vivid detail one reason why the Justice Department is so interested in S. 2117. Specifically, major developments—some of which are not yet public knowledge—have occurred which jeopardize the Department's policy of hiring private counsel to represent Federal employees.

As much as the Department has had headaches with its policy of hiring private counsel to defend Federal employees, S. 2117 as drafted is not the answer. As introduced S. 2117 would immunize Federal officials from being held accountable in civil suits for violating the constitutional rights of Americans. This would eliminate the Department's need to hire private counsel to represent Federal employees. Under the bill the United States—and not the Federal employee—will be the defendant.

While this might provide a tidy solution to the problem involved in hiring private counsel, it is at a cost I am unwilling to accept. I am frank to say that, as presently drafted, S. 2117 will do little to prevent a repetition of the lawlessness by Federal employees disclosed over the past several years, and, might, in fact, encourage it.

The major problem with the bill as drafted is that in immunizing Federal officials from any accountability through civil actions, S. 2117 substitutes no effective alternative system of accountability. Instead, the bill relies on civil service disciplinary procedures which have proven to be so inadequate and ineffectual in the past. Perhaps if these civil service disciplinary proceedings had been adequate and effective, there would be no need for this bill today. At a minimum, therefore, the basic elements of an effective disciplinary procedure must be included in the bill.

My opposition to the bill as drafted is tempered by the fact that the Justice Department has demonstrated its sensitivity to the threat posed by the existing language of the bill and is apparently willing significantly to amend the bill. The Department has been open to suggestions for amendments and has met on a number of occasions with individuals concerned about the bill. The Department has carried on these discussions in good faith and I have every expectation that these meetings will produce amendments which will alter the basic thrust of the bill.

I do not want to intrude on these discussions which are still going on-but I do want to outline the types of amendments which I would support.

First, it is clear to me that the present civil service procedures must be strengthened.

1 See “Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Suits,'' Staff Report of the Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, May 1978.

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The Civil Service Commission has under consideration various proposals, parts of which could be included in S. 2117. One such measure, proposed by the Administration would split the Commission into two entities, one of which would regulate employee conduct. The proposals are for this latter agency to conduct disciplinary proceedings in which aggrieved parties have substantially more rights to participate. Proposals for this type of fundamental reform will take some time to draft and to become law. However, as part of consideration of the Tort Claims Act Amendment I would expect the Administration to commit itself to a basic framework to strengthen civil service disciplinary proceedings as well as assurances that the Administration will join with Congress in establishing a comprehensive accountability mechanism.

The necessity to balance the immunity provisions in S. 2117 can not await that process. Some language—however brief—which will guarantee that existing civil service proceedings will, in fact, be instituted whenever a Tort Claims Act suit is filed for constitutional torts is essential to this bill. In addition, Civil Service disciplinary proceedings should be made to extend to any violation of the constitutional rights of Americans by a Federal employee. Finally, in a disciplinary proceeding, aggrieved parties must be given the right to participate and to appeal any ruling which does not impose sanctions on Federal employees responsible for violating constitutional rights. I am delighted to hear the At. torney General say in his opening statement that he is “personally agreeable" to an amendment along these lines. I am sure that with the Department's assistance such an amendment can be drafted.?

Second, for Federal officials for whom civil service disciplinary proceedings are not available or appropriate, plaintiffs must be given the choice either to sue the government under the Tort Claims Act or to sue the employee in his individual capacity. Civil Service proceedings, for example, are not available for former government employees and are not appropriate for high level Presidential appointees. Under the amendment I suggest a plaintiff would not be able to join the United States and the employee as co-defendants but would have to make an irrevocable choice of which to sue. The Justice Department should be given clear authority to represent Federal employees who are sued in their individual capacity. It is my understanding that few plaintiffs would choose to sue such Federal employees in their individual capacity because the likelihood of recovering damages from the employee is substantially less than recovering from the government.

I had determined two other amendments to be essential and I understand that the Department has agreed to them during the course of its discussion on the bill. One is to eliminate a "good faith” defense on the part of the Government.3 The other would allow class action s'iits and authorize the award of attorneys fees to plaintiffs. One other area that needs to be addressed is the level of minimum damage which can be recovered by a successful plaintiff.

With amendments along the lines I suggest, I can see some merit in the bill. At present plaintiffs are often unable to recover damages because Federal employees can raise a defense of qualified “good faith" immunity. And, as I have mentioned of the Department's present program of hiring of private counsel is in real jeopardy.

Let me close by saying that I am sympathetic with the need to defend Federal employees who responsibly and vigorously perform their duties. It is also a good policy-as the subcommittee staff report will confirm—to avoid the problems created by the Department's hiring of private legal counsel.

In pursuing these two objectives, however, one must remember that the recent deluge of civil suits against Federal officials and the evolution of the Department's policy of hiring private counsel to defend these suits are direct consequences of past widespread government lawlessness. In attempting to mitigate this situation we must guard against encouraging the opposite result. It would be both ironic and tragic for us со ort and encourage Federal employees who intentionally violate the constitutional rights of Americans in our concern over the plight of innocent Government employees harassed by civil suits. Clearly, this bill must ensure the accountability of officials by providing effective safeguards against abuse.

2 See amendment at p. 49. 3 See p. 48 of the appendix. 4 See p. 48 of the appendix. 5 See recommendation of the Senate Intelligence Committee at p. 145 in the appendix.



General BELL. Mr. Chairmen and members of the subcommittees, I appear before the subcommittees today in support of the administration's request to amend the Federal Tort Claims Act. I am accompanied by Irving Jaffe, Deputy Assistant Attorney General, Civil Division, who will address specific provisions of the bill and respond to your detailed questions concerning them.

The legislation before this subcommittee today would redefine the relationship between the Federal employee and the private citizen. It would remove an unjust and counterproductive burden now weighing on the shoulders of Government employees, the possibility of being held liable for a sizable judgment in a civil suit brought for the way he performs his job. It would permit a citizen aggrieved by a Federal employee to sue the U.S. Government, a financially responsible defendant.

The opportunity to institute disciplinary proceedings against an employee who violates another person's constitutional rights would be strengthened without in any way diminishing the employee's liability for criminal prosecution. Finally, it would save the U.S. Government's funds by not requiring it to hire private attorneys to represent individual defendants and will simplify lawsuits against the United States.

The bill would accomplish these objectives 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 remedy in such cases. The Congress has already recognized the merit of these objectives by completely immunizing the operators of our motor vehicles from civil suits and almost all Government physicians from malpractice suits.

The concept of immunizing Federal employees from civil liability for the performance of their duties is one of the most venerable doctrines in American jurisprudence and recognized by the Supreme Court more than 80 years ago. Versions of the immunity doctrine designed to protect members of the judicial branch run even deeper into our Anglo-American common law; and immunity for members of the legislative branch is found, of course, in the Constitution.

One of the rationales for protecting officers and employees of all branches of the Government from civil liability is to protect and encourage fearless, vigorous, and effective exercise of their job responsibilities which, even when properly discharged, undoubtedly will, from time to time, displease some of those who are affected by their actions.

In recent years, the doctrine of absolute immunity for Federal employees has come under understandable attack in light of the tragedy of Watergate.

Heretofore, a Federal official was completely immunized from personal liability and from the need to defend the suit against him if he established that the challenged conduct was performed within the scope of the outer parameters of his official duties and that those


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duties involved an element of discretion. More recently, however, the courts have qualified the immunity of a Government officer by requiring him to prove, in addition, his good faith belief in the lawfulness of his conduct.

Such liability for Federal employees serves no constructive purpose. First, it is of little use to the citizen plaintiff who rarely recovers substantial sums from individual employees.

Second, it is neither a practical nor realistic deterrent of improper or unlawful activity for the very reason that large judgments are so infrequent. Judges and juries are understandably reluctant to make such awards against Government workers. For those who say that the threat of suit deters improper conduct, it is equally true that the threat of suit deters proper conduct. For a punishment to be an effective deterrent it must be predictable.

Third, the prospect of being required to submit to the frequently long and probing process of civil discovery in the face of adverse publicity in the press, even with the reasonable expectation of eventual vindication, is inhibiting to the performance of one's job responsibilities and is destructive of morale. Let us remember that the very great majority of the millions of Federal workers are honest, law abiding, and conscientious.

The possibility of civil damage actions for these people tends to discourage taking difficult assignments and performing such assignments thoroughly and courageously. Instead, it has the effect of causing otherwise responsible officials to worry about "covering” themselves. I know this is true in the Justice Department and in other departments and agencies of the Federal Government.

If civil liability of Federal employees is removed, however, I recognize that some sort of mechanism should be established to insure the fair and effective disciplining of a Government employee who has violated a citizen's constitutional rights. This bill would not affect such an employee's liability under the criminal laws, but criminal liability alone is not a complete system of accountability.

To this end, I am personally agreeable to provisions which would assure effective and fair procedures to discipline an employee who has violated another's constitutional rights, procedures in which the injured person can participate in a meaningful way. We understand, however, the administration is considering such new procedures.

From a deterrent point of view, I believe that the prospects of disciplinary action and, if the conduct is criminal, the possibility of criminal prosecution, will be sufficiently strong to discourage improper conduct in the future.

A problem related to the decreasing scope of immunity given to Federal employees is the need to hire private attorneys at an ever increasing rate to perform the representational functions traditionally undertaken by department employees. The problem results from the fact that with the erosion of absolute immunity from civil suit, Federal employees are increasingly being subjected to personal suits for damages. Most suits based on constitutional torts name several employees. Frequently these Federal defendants have conflicting

1 See Department's proposed amendment to S. 2117 at p. 49 in the appendix.

accounts of underlying facts. In other cases, arguments that could best protect them from individual liability may conflict with broader policy interests of the United States. In such instances, ethical considerations prevent the department's attorneys from representing the employees.

Únder present legislation there are only two alternatives. The first is to deny the Federal worker representation for conduct undertaken within the scope of his employment and require him to retain private counsel at rates that are certain to create financial disaster. The second choice is to spend the taxpayer's money to hire private attorneys to represent the employee on an independent basis without any supervision by me. Neither alternative is satisfactory.

Denying all forms of Government legal assistance for the performance of Government work would produce chaotic results. It is in the Government's interest to represent or provide representation to its employees who are sued as a necessary incident to the preservation of morale and the effective performance of their duties. It is not untoward for any employer to provide such representation to his employee. The choice of hiring private counsel also presents unsatisfactory results. The cost of private counsel is proving to be a highly expensive undertaking even though the maximum fees we have persuaded private attorneys to accept are frequently less than half their normal rates. In fiscal 1977, the Department spent over $600,000 in private counsel fees. In the first quarter of the current fiscal year, the Department paid approximately $240,000 in fees. If the first quærter figures continue at their present rate through the remainder of fiscal 1978, we will be experiencing a 60-percent increase in private counsel fees.

Notwithstanding these difficulties, the retention of private counsel is the most viable alternative by which the Government can fulfill its obligations to itself and to its employees when it cannot represent them.

Under the amendments to the Tort Claims Act proposed in this bill, the United States would become exclusively liable for all constitutional torts and most of the common law torts of its employees. Individual Federal employees would not be named as defendants in such lawsuits; and, as a result, there would no longer be many conflicts or any need to provide them with costly representation.

For the first time, this bill will provide that the United States would make itself liable in damages for the conduct of its employees for acts or omissions in most common law torts and for all actions which violate certain constitutional rights of individual Americans.1 Each citizen would be guaranteed a financially solvent defendant.

Of equal significance is the fact that the United States will not raise the immunity defenses now available to its employees who are sued personally. Even though the defenses have been greatly reduced in scope, they still afford a Federal employee with an eventual means of avoiding civil liability if the employee can establish his good faith belief in the lawfulness of his conduct.

1 See questions and answers at p. 131 to 139 in the appendix. 2 See Department amendment at pp. 48, 49.

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