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While the scope of this twofold exemption is the subject of debate, there is no question that the government seeks to rely on the exemption in a large number of cases. If the Federal Tort Claims Act is extended to cover constitional torts, reliance on the exception certainly will increase, rendering the potential gain to constitutional tort victims latgely illusory.

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The third stated purpose of the bill is to eliminate the need for the government to hire private attorneys to represent individual federal employees against whom suits for money damages have been brought.

Based on the information available to us, there is serious doubt as to whether the government has the legal authority to hire outside counsel in cases of this nature. In any event, the government certainly is not required to do so, and we understand that private attorneys have been hired in only a handful of cases.

We are sensitive to the government's concern relative to its present prace. tice, but we do not believe that a handful of cases should prompt a legislative proposal which abrogates the principle of individual accountability and removes a necessary deterrent. At the very least, alternative approaches to this problem should be explored.

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While we have other questions about the bill, such as the availability of class actions and of attorneys' fees, the foregoing comments serve to highlight our major concerns. One final point needs to be made, however, about the final section of the bill. Although your letter nowhere mentions it, the bill's last section provides that it. "shall apply to all claims and suits pending on the date of enactment...." Quite apart from the potential unfaimess of the bill's retroactivity clause to those citizens presently litigating claims against individual government officials, this provision raises serious constitutional questions. 5/ The letter's failure to even mention the bill's retroactivity feature thus seems to us a rather serious amission.

We sincerely hope that our comments will prompt a reexamination of the proposed bill. "Needless to say, we would welcome the opportunity to work with the Department in developing an approach to the problem of civil liability and individual accountability which would address our mutual concerns.

Yours sincerely,

Forstar

David Cohen

John Shattuck
American Civil Liberties

Union

David Cohen
Cammon Cause

57 See, e.g., Carr v. United States, 422 F.2d. 1007, 1010-1011 (4th Cir.,1970).

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LETTER

FROM SENATOR METZENBAUM TO ATTORNEY GENERAL,

DECEMBER 14, 1977: QUESTIONS ON S. 2117

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As you know, we are opening our hearings on s. 2117 on January 26, 1978, We are especially pleased that you will testify before our subcommittee on that date,

The bill has raised a great many questions. TO
resolve some of these, we would greatly appreciate your
responses to the enclosed set of questions. In order to
evaluate them adequately and to obtain the maximum
benefit from your appearance, it would be helpful to
have those responses by January 13, 1978.

Thanking you in advance, I remain,

with warmest regards,

24

Metzenbaum

Howard
Chairman

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Enclosure

QUESTIONS FOR THE DEPARTMENT OF JUSTICE ON S. 2117

Section 3 of S. 2117

.

1. Is "wrongful," as used in S. 2117, different from "constitutional,"

and intended to be applicable only to common-law torts?

2. Page 3, lines 1-2 and 19-21. Please set forth the intended differences

in scope and meaning between "liability" in line 1 and "extent of compensation"

in line 20, and the reasons for the different choices of applicable law.

3. Page 2, line 23 - p. 3, 1, 7. Is it intended that other constitutional

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violations will be treated in the same manner as wiretapping violations, i.e.,

one hundred dollars a day plus attorneys fees and costs?

3. Page 3, lines 7-11. Why limit Government liability when the employee

has a good faith defense? Should not the United States be held liable, regardless

of the individual employee's reliance on a court order or legislative authorization,

if that order or authorization - both of which are actions by the United States

resulted in a violation of a person's constitutional rights ?

5. Page 3, line 8. What "other defenses" are intended to be covered by

the second proviso of subparagraph (b)?

6. Page 3, lines 16-17. (a) Why is there a limitation to "actual or com

pensatory damages sustained" where a good faith defense is found to exist?

(b) What kinds of injuries are included therein? I. e., does this

include compensation for emotional distress and other types of intangible injury?

(c) If emotional or other intangible injuries are not included in

"actual or compensatory damages sustained," why not?

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7. Page 3, lines 11-17. Are all violations of the Wirelap Act,

(ch. 119, Title 18) considered "constitutional" violations for purposes of

subparagraph b so that any violation of that Act would support "reimbursement

lofī the person whose constitutional rights were violated for the actual or

compensatory damage sustained, " regardless of the existence of a good faith

defense?

8. Page 2, lines 5-6. How is the reasonable attorney's fees provision

of Section 3 affected by the 25% limitation of 28 U.S.C. § 2678? Would this not

be a serious problem if the recovery is only one hundred dollars a day or one

thousand dollars?

9. By setting $1000 as the minimum damages, is it contemplated that

in Constitutional Tort cases $1000 will become the standard damage award

because damages are usually hard to prove?

Section 2676

1. How does this relate to the exclusivity of the remedy provided for

in Section 5 of S. 2117?

2. Why is a Constitutional Tort suit against an employee in his individual

capacity precluded for any subject matter "arising out of or relating to" that subject

matter, when in non-constitutional Tort cases such a suit would be barred only for

"the same subject matter" (Section 2670)?

Section 2079, Section 5 of S. 2117

1. (a) Exclusivity was limited to motor vehicle suits before, but is now

extended to all FTCA claims. Is that correct?

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