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that the omission of costs and attorneys' fees in non-wiretap cases is a drafting error which the Department intends to correct.

We are prepared to submit a more detailed analysis of the proposal at a later date, but we wanted to put our initial reactions in writing for your review and consideration. We look forward to working with you on this and other matters of mutual concern.

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LETTER FROM COMMON CAUSE, THE AMERICAN CIVIL LIBERTIES UNION

AND OTHERS TO ATTORNEY GENERAL, NOVEMBER 21, 1977

21 November 1977

The Honorable Griffin B. Bell
Attorney General
Washington, DC 20530

Dear Mr. Attorney General:

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We have completat a review of the legislation drafted by the Department
of Justice to amend the Federal Tort Claims Act (H.R. 9219/s. 2117)...
We have grave doubts about the wisdom and practical effects of the bill
as drafted and would like to share our concerns with you in the hope
that this legislation will be reexamined.
Our most fundamental concern stems from the impact this proposal would
have on the accountability of government officials for their actions.-
It is astonishing to us that an Administration which came to office pran
ising to end an era of government lawlessness and official misconduct

should now propose to insulate federal officials from liability for
· their conduct even where these officials willfully violate the con-
“stitutional rights of citizens. In the wake of Watergate, the Nixon
impeachment proceedings, and the scandals of the federal intelligence.
agencies, public sentiment clearly favors strengthening the accounta-
bility of individual government officials. We had thought the Carter
Administration shared this view and were heartened when Vice President
Mondale, in an August speech to the American Bar Association, stated,
"To ensure adherence to the rule of law, we are committed to ... greater
accountability of officials and stronger safeguards against abuse."
Now, however, the Department has proposed legislation, in the form of
amendments to the Federal Tort Claims Act, which would have precisely
the opposite effect.

our detailed reservations about the bill can best be surmarized in rela-
tion to its purposes as outlined in your letter of September 17 to the
Vice President.

I.

Protection of Federal Employees from Individual Liability

The letter states that a primary purpose of the proposed legislation is "to protect federal employees from suits for money damages arising out of the performance of their duties." The bill thus immunizes individual employees from liability in all situations where a remedy is available against the government.

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As a matter of principle and practical effect, we are greatly troubled by the notion that federal employees -- even where they act with malice, intent, or reckless disregard for the rights of others are entitled to protection from suits for money damages arising out of actions taken during the course of their employment.

The Department's desire to imunize federal employees from civil liability is particularly disturbing since it comes at a time when both the Congress and the courts are recognizing the need to tighten the system of accountability for the violation of constitutional rights by federal officers.

Last year, the Senate Intelligence Committee, chaired by Senator Frank Church, recognized the need for expanded civil remedies against intelligence officials both to insure that citizens injured by illegal or inproper intelligence activity will obtain effective redress and to deter recurrent intelligence abuses. Accordingly, the Church Comnittee recome mended that a cause of action be available against the government and the individual officer. ” Beginning in 1971 when it held that a violation of the Fourth Amendment by federal agents gives rise to a cause of action for damages, 21, the Supreme Court has moved to tighten individual accountability for consti-i tutional violations committed by federal officers. In so doing, it has rejected the notion of absolute immunity for officers of the executive branch of government, holding that, as to them, only a qualified immunity, dependent on the existence of the official's good faith belief in the reasonableness of his or her actions, is available: 3/ Your letter to the Vice President concedes that it is "plausible" to · argue that "in an egregious case the individual employee should be personally liable" but then gives four reasons for rejecting this argument, We do not find any of these reasons persuasive. Your letter first observes that "egregious cases are extremely rare.

This seems to us to cut in favor, rather than against, the imposition of :- personal liability. The letter then states that "one of the main pur

poses of the (bill) is to... foster good faith, vigorous performance of duty," and the threat of personal liability "would be counter-productive (to) this purpose." But this purpose is already served by the good faith defense which is available to any employee sued for acts performed in the course of official conduct.

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1 Final Report of the Select Camittee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate, 94th Cong., 28 Sess., Report No. 94-755 at 337. 2/ Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 3/ Scheuer v, Rhodes, 416 U.S. 232 (1974).

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The two other justifications offered for individual immunity similarly do not withstand analysis. Your letter states that if personal liability were to exist, the employee would seek to intervene and this "would jeco pardize the government's control of the litigation." As the letter notes, however, there are other solutions to this problem. In any event, we do not believe that the fear of jeopardizing the government's control over litigation is a sufficient reason to override the principle of individual accountability,

As the final reason for rejecting the view that the individual employee should be personally liable in an egregious case, your letter states that a lawsuit against the employee "would be essentially a punitive gesture.". since, under traditional principles of equity, an award of punitive danages would be proper in an egregious case, we do not perceive a basis . for objecting to the "punitive" nature of such a lawsuit.

The immunization of federal employees from civil liability would not only abrogate the principle of individual accountability, it also would remove an existing deterrent against illegal conduct, In proposing to remove this deterrent, the Department has not attempted to replace it with a new ::. accountability mechanism. but instead.. would rely-solely on existing alternas tives, i.e., the possibility of disciplinary action and the threat of criminal prosecution. We believe that the threat of civil liability does deter unconstitutional conduct and that neither existing disciplinary practices nor the threat of criminal prosecution will serve an adequate deterrent function. In many cases conduct which would permit the imposition of civil liability is not criminal, and the threat of criminal prosecution is therefore theoretically, as well as practically, non-existent. Since the proposed bill does not mandate the commencement of disciplinary proceedings nor: specify the types or range of penalties that may be imposed, it retains all the weaknesses of the existing disciplinary system. While we, of course, are interested in new approaches to the need for individual accountability, we cannot accept the view that the mere possibility of some undefined disciplinary action is an adequate deterrent against una constitutional conduct by federal employees.

II, · The Provision of a Remedy against the Government

Your letter states that an additional purpose of the proposed legis lation is to provide the victims of carmon law and 'constitutional torts' committed by federal employees with a remedy against a financially responsible defendant! Since we are all aware of the practical limitations of private damage actions against individual government employees, the expansion of governmental liability for torts committed by federal employees could represent a progressive step for the victims of such tortious conduct. As contemplated by the bill, however, the expansion of governmental liability would be of extremely limited value in enhancing recovery for tort victims,

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Several aspects of the bill substantially reduce the likelihood of an enhanced recovery, particularly for victims of constitutional torts. First, the bill contains no provision for punitive damages because "[t]he Federal Tort Claims Act has always precluded the award of punitive damages against the United States, This statement in your letter to the Vice President ignores the distinction between common law torts, which the FICA always has covered, and constitutional torts, which it has not. In constitutional tort cases the harm is often non-economic, making it difficult to prove actual or compensatory damages. Thus, for purposes of constitutional torts, the question of how "financially responsible" the defendant is becomes somewhat academic unless punitive damages are available, Moreover, the fact that punitive damages are not presently allowed under the FTCA does not dispose of the public policy issue as to whether Congress, in considering other changes to the Act, should eliminate that restriction, at least in some instances. Second, although the bill provides for nominal liquidated damages, it allows the government to raise a good faith defense, which would preclude. even that minimam recovery... Since the good faith defense was developed., to ensure that individual employees would not be deterred from the vigorous performance of their duties and responsibilities, the rationale for the defense does not exist when the government itself is the defendant. Your letter implicitly acknowledges this analysis by noting that "[t]hes 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.". Indeed, the Church Conmittee, addressing the need for a legislative scheme which would afford effective

redress to citizens injured by improper federal intelligence activity, ' concluded last year that the good faith defense "should be available solely

to individual defendants and should not extend to the government." 4/ Given the contrary recommendation of the Church Committee and the bill's avowed purpose of enhancing the remedy available to persons injured by the unconstitutional conduct of federal employees, we do not understand why the bill extends the good faith defense to the government. A third aspect of the bill undermines the claim that it will increase the amount of damages that may be recovered by the victims of constitutional wrongdoing. The bill retains exceptions to governmental liability presently found in $2680 (a) and $2680 (h) of the Federal Tbrt Claims Act. Section 2680 (a) provides that the Act shall not apply to-

Any claim based upon an act or anission of an
employee of the Government, exercising due care,
in the execution of a statute or regulation,
whether or not such statute

or regulation be valid,
or based upon the exercise or performance or the
failure to exercise or perform a discretionary
function or duty on the part of a federal agency or
an employee of the Government, whether or not the
discretion involved be abused. (Emphasis added, )

4 Final Report of the Select Carmittee, supra.

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