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Section 2680 (a). "Discretionary act"


(a) Does this exclude liability even if a federal official violates

constitutional rights by an abuse of discretion?

(b) Aren't many if not most constitutional violations a product of

discretionary action?

(c) Weren't the Cointelpros involving unconstitutional mail openings and wiretappings adopted in the exercise of discretion?

Section 268 (h), Section 8 of S. 2117.

Why the exclusion in subsection (h) if the act also involves a violation of the Constitution? More specifically, why should the United States not be liable for misrepresentation, deceit and interference with contract rights, if those activities violate constitutional rights? Didn't many of the Cointelpro operations involve misrepresentation, deceit, and efforts to get people fired?

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Section 2680 (k)

Why the exclusion in subsection (k) for constitutional violations "arising in a foreign country", at least where the victims are American? For example, the violations involved in the Berlin Democratic Club case.


28 U.S. C. § 2401

Would 28 U.S. C. 2401 bar the filing of a claim for a Constitutional Tort if the existence of the tort had been concealed by the United States or if there is some other valid reason why the claimant was unaware of the facts underlying the claim?

28 U.S. C. § 2402

Does section 2402 bar jury trials in Constitutional Tort cases?

Jaffe Memorandum to Calamaro of December 13, 1977

1. Can the text of a new subsection (f) of § 2679 be made available

to the Subcommittee?

2. Please set forth in detail the "serious problems" that would be presented by the elimination of the good faith defense insofar as "discovery". and "the relationship between good faith and accountability" are concerned. 3. Does the memorandum modify the bill, as it was introduced? I.e., are we to assume that the changes referred to in the memorandum in §§ 2679 (f), 2579 (d) (3), attorneys fees and class actions, will in fact be made and that consideration of the bill should proceed on that understanding?




Department of Justice
Washington, DC. 20530

January 20, 1978

Honorable Howard M. Metzenbaum


Subcommittee on Citizens and

Shareholders Rights and Remedies
Committee on the Judiciary
Washington, D. C. 20510

Dear Mr. Chairman:

I regret the delay in responding to your letter of December 14, 1977, addressed to the Attorney General, and referred to me, to which was attached a number of questions relating to S. 2117. The delay, in part, has been occasioned by the Department's consideration of comments submitted by representatives of a number of public interest groups and the preparation of some 1 changes in S. 2117 which we intend to propose to your Subcommittee.

At the request of Mr. Herman Schwartz, your Chief Counsel, I also set forth some of the broad purposes of this bill. One of the hazards of Government service is that of being sued for what are often difficult decisions made in areas where there are few precedents, or for simply making a mistake. It would be demoralizing for Government employees to face the prospect of paying counsel fees for suits based on acts performed within the scope of their employment. Thus, it has long been the tradition of the Justice Department to defend individuals sued for such acts, as part of the general responsibility to represent the Government in litigation.

But in the past two or three years an increasingly large number of suits have been filed against officers and employees of the Government seeking monetary damages against them personally, not only for common law torts, but for alleged Constitutional violations. Some of the conduct alleged to have been performed, would, if established, constitute violations of Federal criminal statutes. This circumstance immediately raised a conflict of interest problem in those instances in which the Department was conducting criminal investigations and had not yet reached a prosecutive decision. Under the Code of Professional Responsibility, the Attorney General cannot at the same time engage in a criminal investigation of an individual and represent that some individual in a civil suit seeking damages for the same conduct which is the subject of the criminal investigation. In most of these civil suits many Government officers and employees are joined as defendants. This, too, frequently presents a conflict of interest because the interests of each defendant in the defense of the suit are not the same.

As a consequence, we have been compelled to retain the services of private attorneys to represent the Federal officers and employees, at least until such time in the criminal situation that we had determined to seek an indictment or the possible conflict of interest had been resolved. The cost of private counsel has been huge. We consider it imperative that means be found to eliminate these high costs and yet preserve the morale and efficiency of the Government employee. By waiving the Government's sovereign immunity from suits for Constitutional violations committed by its officers or employees and making the United States the exclusive defendant both in those cases and in suits against employees based upon common law tort, we eliminate the conflicts and the necessity for employing private counsel. S. 2117 accomplishes this purpose.

At the same time, the bill offers to the citizen who has been injured or whose rights have been violated a solvent defendant and, we believe, a more effective remedy. The bill merely extends, with respect to the exclusivity of the remedy against the United States, that which the

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Congress has already done in the Federal Drivers Act and in the piecemeal bits of legislation for most of the physicians in the Federal service with respect to malpractice suits. The legislation does not, at the same time, immunize the individual officer or employee from all responsibility for his conduct. If his actions violate the criminal laws he is still subject to prosecution for those. offenses; if the employee's conduct is not criminal, he is subject to disciplinary proceedings. In this regard, Justice Department representatives have considered alternative mechanism to insure a fair but effective system for disciplining wrongdoing by Federal employees. We look forward to discussing these with your Subcommittee.

We believe, moreover, that substituting the Government as the exclusive defendant will ultimately enable a more reasonable and fair litigating posture in these cases. When representing the United States alone, we are better able to settle cases and waive defenses where that is just, than when the rights and reputations of individuals are at stake.

The responses to your several questions are attached. Should you have any further inquiries, we will be pleased to respond to them.

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