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the district embracing the place wherein the action or proceeding is brought, to the Attorney General and to the head of the agency concerned.

(c) Upon a certification by the Attorney General that any person described in subsection (a) was acting in the scope of such person's duties or employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a state court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State court.

(d) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect.

(e) For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations).

(f)] (a) The head of the agency concerned or his designee may, to the extent that he or his designee deems appropriate, hold harmless or provide liability insurance for any employee of the Armed Forces, the Department of Defense, or the Central Intelligence Agency, [ person described in subsection (a)] for damages for personal injury, including death, caused by such person's negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within th scope of such person's duties if such person is assigned to a foreign country or detailed for service with other than a Federal department, agency, or instrumentality or if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 1346 (b) of title 28, for such damage or injury. [(8)] (6) In this section, "head of the agency concerned” means

(1) the Director of Central Intelligence, in the case of an employee of the Central Intelligence Agency ;

(2) the Secretary of Transportation, in the case of a member or employee of the Coast Guard when it is not operating as a service in the Navy; and

(3) the Secretary of Defense, in all other cases.

(Section 9(e) of S. 2117)

PUBLIC HEALTH AND WELFARE, 42 U.S.C. 2458a 8 2458a. Malpractice and negligence suits against the United States—Exclusive

remedy [(a) The remedy against the United States provided by sections 1346 (b) and 2672 of Title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the Administration in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding.

Attorney General to defend any civil action or proceeding for

malpractice or negligence; service of process (b) The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) of this section (or the estate of such person) for any such injury. Any such person against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon such person or an attested true copy thereof to such person's immediate superior or to whomever was designated by the Administrator to receive such papers and such person shall promptly furnish copies of the pleading and process therein to the United States Attorney for the district embracing the place wherein the proceeding is brought to the Attorney General and to the Administrator. Removal of actions; certification by Attorney General; remand to State court

(c) Upon a certification by the Attorney General that any person described in subsection (a) of this section was acting in the scope of such person's duties or employment at the time of the incident out of which the suit arose, any such civil action or proceeding cominenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of Title 28, and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State court.

Compromise or settlement of claims (d) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of Title 28, and with the same effect.

Applicability of other provisions of law (e) For purposes of this section, the provisions of section 2680 (h) of Title 28, shall not apply to any cause of action arising out of a negligent or wrongful act of omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations). Liability insurance for persons assigned to foreign countries or non-Federal

agencies (f)] (a) The Administrator or his designee may, to the extent that the Administrator or his designee deem appropriate, hold harmless or provide liability insurance for any employee of the National Aeronautics and Space Administration [person described in subsection (a) of this section] for damages for personal injury, including death, caused by such person's negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of such person's duties if such person is assigned to a foreign country or detailed for service with other than a Federal department, agency, or instrumentality or if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 2679(b) of Title 28 for such damage or injury.

(Section 10 of S. 2117)

CRIMES AND CRIMINAL PROCEDURES, 18 U.S.C. 2520 8 2520. Recovery of civil damages authorized

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person

1(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred. A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

[Section 10 of S. 2117 states that Section 2520, title 18, United States Code, above shall not apply to civil causes of action against officers or employees of the United States while acting within the scope of their_office or employment, or while acting under the color of such office or employment.]

LETTER OF ACLU TO RAYMOND S. CALAMARO, OCTOBER 3, 1977

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We have completed a preliminary review of the Department's 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.

We support certain aspects of this proposal and believe that
it can represent a progressive step for victims of "constitutional
torts" committed by federal employees. We have some concerns about
the proposal as drafted, however, and would like to bring them to
the Department's attention in the hope that we can work together
in drafting amendments.

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Section 3 of the bill provides, "That without any effect or
limitation upon any other defenses, a good faith reliance on
court order or legislative authorization shall constitute a com-
plete defense to any claim or suit arising under the Constitution
of the United States,.. As the Department acknowledges in its
letter to the Vice President, 1/ "The question of whether all defen-
ses 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." Since the good faith defense was devel-
oped to ensure that individual employees would not be deterred in
the performance of their duties and responsibilities, we submit
that there is no justification for allowing the government itself
to assert good faith as a defense.

1 Hereinafter “the letter." [See p. 26.)

600 Pennsylvania Avenue, S.E. Washington, D.C. 20003 (202) 544-1681

John H. F. Shattuck, Director • Jay A. Miller, Associate Director • Kathleen Miller, Legislative Representative William F. Ware, Pamela S. Horowitz, Legislative Counsel • Ellen Leitzer. Staff Counsel • Jerry J. Berman, Legislative Associate

Norman Dorson. Chair wigon. Board of Diroclors • Aryeri Neior, Exoculivu Director

• 2

As the letter concedes, "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." For this reason, the bill allows for an award of actual or compensatory damages even where the good faith defense is available. Thus, the only practical effect of the good faith provision is to preclude a minimum recovery. Particularly since the good faith defense is a "developing area of law," proof of the existence or non-existence of the defense will require the expenditure of countless hours of judicial time in each case where it is asserted. This drain on judicial resources cannot be justified where the only effect is the preclusion of a minimum recovery and where, in the absence of individual defendants, the rationale for the defense does not exist.

Since "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," and since the availability of a good faith defense can only result in the expenditure of precious judicial resources, with no countervailing benefit, the proposal should be amended to prohibit the assertion of a good faith defense.

2. Individual liability.

The bill totally immunizes individual employees from liability in situations where a remedy is available against the government. Thus, even an individual who acted with malice and an intent to inflict harm would incur no personal liability for the consequences of his/her actions; and the innocent victim of such actions would be unable to recover punitive damages, even though such an award clearly would be justified as a matter of equity.

The letter states that this approach is warranted because "experience shows that egregious cases are extremely rare. It appears to us that the rarity of such cases cuts in favor, rather than against, the imposition of personal liability. Moreover, the potential imposition of personal liability provides a necessary deterrent. Given the severity (and therefore unlikelihood) of criminal prosecution, the only real deterrent under the proposed legislation is the possibility of disciplinary action, which is plainly inadequate.

Since an award of punitive damages would be justified where the employee acted with malice, it is no answer to suggest that, because most federal employees would be able to satisfy only a modest judgment, a lawsuit against them would be "essentially a punitive gesture. In any event, from the viewpoint of an innocent victim, even a modest amount is better than none.

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In short, we believe that the retention of individual liability, in cases where the employee acted with malice or an intent to inflict harm, is necessary for its deterrent value and as a matter of public policy, since it promotes confidence in government and provides for the equitable treatment of innocent victims of such misconduct. Accordingly, we believe that in egregious cases the victim of a constitutional tort committed by a federal employee should be able, at the outset, to sue both the government and the individual employee. At the least, we would urge that the proposal be amended to provide for suit against the individual employee in those cases where, in the course of the initial litigation against the government, it is determined that the employee acted with malice or intent to inflict harm. ΤΟ avoid due process problems with respect to the employee, such a determination would not be binding in a subsequent suit against the employee. Rather, the statute specifically would provide that the issue of individual liability be determined de novo.

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Section 6 (d) (4) of the proposed bill provides that "(w) here an action or proceeding under this chapter is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the action or proceeding shall be dismissed,

By providing that the FTCA action shall be dismissed, the bill leaves the victim without a remedy if it is subsequently determined that s/he is not in fact entitled to compensation or other benefits under another law and if, in the meani!hile, the time for filing a suit under the FTCA has expired. The bill should thus be amended to provide that, where an alternative remedy may be available, the FTCA claim should be held in abeyance until proceedings for compensation or other benefits under the other law have been completed and shall be dismissed only if the claimant's entitlement to other benefits is established during the alternate proceedings.

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The proposed bill provides that the Attorney General shall certify whether "the employee was acting within the scope of his office or employment or under color thereof,

While this certification is subject to review by the district court in cases where suit originally was filed in state court, it is apparently conclusive where the suit originates in federal court. Since the deterfuination as to whether the employee was acting within the scope of his office or under color thereof, is a question of law, it should be made in each instance by the court and not by the Attorney General.

In addition to the above-outlined reservations, we already have expressed our concerns relative to the availability of class actions and jury trials under the proposed legislation and understand that the Department is looking into these matters. We also understand

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