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JUSTICE DEPARTMENT RESPONSES TO DECEMBER 14, 1977,

QUESTIONS ON S. 2117

SECTION 3 OF 8. 2117 (28 U.s.c. 2674) Question 1. Is "wrongful,” as used in S. 2117, different from "constitutional,” and intended to be applicable only to commonlaw torts?

Answer. Yes. The proposed amendment incorporates into 82674 the language in 81346(b) that so describes common law torts.

Question 2. Page 2, 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.

Answer. “Liability" in lines 1-2 of page 2 refers to the determination that a constitutional violation has occurred from which a remedy in damages will flow.

"Extent of Compensation" in lines 19–21 refers to the damages that will flow from the determination of liability. The determination of liability for violation of the Constitution involves the interpretation and construction of the Constitution and therefore must be governed by Federal law. Damages, on the other hand in the area of torts, have always been determined under state law under which there is a large body of precedent. There is very little Federal law in the area of tort damages; therefore, we do not disturb the current basis for determining damages in accordance with applicable State law except to the extent that we provide for liquidated damages in the proposed bill.

Question 3. Page 2, line 23—p. 3, 1, 7. Is it intended that other constitutional violations will be treated in the same manner as wiretapping violations, i.e., $100 a day plus attorneys fees and costs?

Answer. It is intended that $100 per day, with a minimum of $1,000, apply only to wiretapping victims. Other constitutional violations are governed by the minimum liquidated damage provision of $1,000. The $100 per day provision for wiretapping was prompted by our desire to retain the damage formula prescribed by 18 U.S.C. $2520 for wiretapping offenses since we make 18 U.S.C. 82520 inapplicable to officers and employees of the United States by 810 of the bill. Moreover, there are few, if any, other constitutional violations which are of a continuing nature, as wiretaps frequently are. As to any that might exist, we are prepared to consider a more suitable liquidated damage provision. Attorneys' fees and reasonable costs are applicable to all Constitutional violations. We are submitting an amendment to clarify any ambiguity.

Question 4. 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?

Answer. We have decided to yield on the question of asserting the defense of "good faith" on behalf of the Government and will request that the proviso appearing on page 3, lines 7-17 be deleted."

Question 5. Page 3, line 8. What "other defenses" are intended to be covered by the second proviso of subparagraph (b) ?

Answer. The reference to "other defenses" will, as indicated above, be deleted. It would therefore appear that apart from jurisdictional questions the only defense remaining to the Government will be that no constitutional violation occurred or has been established, or does not sound in tort.

Question 6. Page 3, lines 16–17. (a) Why is there a limitation to "actual or compensatory damages sustained" where a good faith defense is found to exist ?

Answer. Inasmuch as we intend to delete the “good faith" defense on behalf of the Government, the reference to "actual or compensatory damages" will no longer be a limitation.

Question 7. Page 3, lines 11-17. Are all violations of the Wiretap Act, (ch. 119, Title 18) considered "constitutional” violations for purposes of subparagraph b so that any violation of that Act would support "reimbursement [of] the person whose constitutional rights were violated for the actual or compensatory damage sustained,” regardless of the existence of a good faith defense?

1 See p. 48.

26-729 0.78.7

Answer. Same response to question 4 above, which makes this question inapplicable and moot.

Question 8. Page 3, lines 5–6. How is the reasonable attorney's fees provision of Section 3 affected by the 25 percent limitation of 28 U.S.C. $2678? Would this not be a serious problem if the recovery only one hundred dollars a day or one thousand dollars ?

Answer. It is our belief that 28 U.S.C. $2678 is applicable to common law torts and would not apply to the fee provision as proposed in the new third paragraph of section 2674 (b). However, to avoid any ambiguity, we shall propose an amendment to 82678.

Question 9. By setting $1,000 as the minimum damages, is it contemplated that in constitutional tort cases $1,000 will become the standard damage award because damages are usually hard to prove?

Answer. With respect to constitutional torts, a claimant will be entitled to recover whatever compensation is recognized under the tort law of the state in which the violation occurred. Because we are aware that compensatory damages are seldom suffered in cases of constitutional torts, we have provided for damages in a minimum sum of not less than $1,000 plus reasonable attorney's fees and litigation costs.

SECTION 2676

Question 1. How does this relate to the exclusivity of the remedy provided for in Section 5 of S. 2117?

Answer. This section complements the exclusivity of the remedy provided in Section 5 of S. 2117. Section 2676 protects the employee in such cases in which the remedy against the United States is not exclusive.

Question 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 2676) ?

Answer. In dealing with constitutional torts, we considered it prudent to use the broader term "arising out of or relating to” that subject matter rather than the narrower term “the same subject matter" as appears elsewhere in the Act. In making this judgment we were mindful of the facility with which a Constitutional violation might be alleged and the ease with which such an allegation could be divorced from other possible causes of action arising out of or related to the same subject matter. We also took into account that in common law torts the liability of the United States could only arise if the conduct which forms the basis of the suit was performed “within the scope of his [employee's] office or employment.” In constitutional torts we have broadened the liability of the United States to include "while acting under the color" of his office or employment. These considerations seem, to us, to require a broader description of the subject matter to which that conduct related.

SECTION 2679, SECTION 5 OF S. 2117

Question 1. (a) Exclusivity was limited to motor vehicle suits before, but is now extended to all FTCA claims. Is that correct?

Answer. (a) Exclusivity was not limited to motor vehicle suits but has also heretofore been made applicable to suits against most physicians employed by the United States for malpractice through piecemeal legislation in statutes other than the Federal Tort Claims Act. See, for example, the statutes repealed in Section 9 of S. 2117. Exclusivity is now extended to all torts under the Federal Tort Claims Act except those common law torts still excepted under Section 2680.

Question (6) Not included in exclusivity before were all negligence matters not involving a motor vehicle. What problems in those areas justify the extension of exclusivity outside the motor vehicle area to other wrongful acts or omissions?

Answer. We had, in the past, experienced conflict of interest problems in common law tort areas of sufficient magnitude to have prompted us to propose legislation similar to this in 1973 to the 93rd Congress (No. H.R. 10439). For example, suits have been instituted against the United States under the Federal Tort Claims Act in which the plaintiffs have joined the Federal employee air traffic controllers. Courts have, on several occasions, challenged the right of the Attorney General to represent both the United States and the air traffic controllers on the ground that there was an inherent conflict between the two. On other occasions, suits have been instituted against multiple defendants who were Federal employees who offered conflicting versions of the facts, thus making it impossible for the Attorney General to represent all of the defendants or, in fact, any of them. These conflict situations are recurrent problems.

Question (c) Why were motor vehicles originally singled out for this special treatment?

Answer. Negligence suits arising out of automobile accidents very often did not join the United States as a defendant, in order to keep the suit în State courts. Although the Attorney General represented the employees, any judgment obtained became a personal obligation of the employee. In many instances, particularly in the Postal Service, employees were required to operate their own automobiles for official business. This resulted in substantially higher insurance costs which the employee paid. The happenstance of whether or not the United States was sued at the plaintiff's option or whether a Government or private vehicle was used gave rise to different consequences and created serious morale problems.

Question 2 (a) Were any civil suits filed against the United States or individual federal officials as a result of the Collinsville, Ill., raids and other intrusions by Drug Enforcement personnel ?

Answer (a) Civil suits were filed against individual Federal officials, but not against the United States, as a result of the Collinsville, Ill., raids. Other suits have also been brought against Drug Enforcement personnel.

Question (6) If so, what were the results?

Answer. Two of the Collinsville raid suits were dismissed after trial. In a third case, a judgment of dismissal against the agents was affirmed on appeal. A fourth, in which the agents were successful in the district court, on motion was reversed on appeal and the case remanded for trial. The trial has not yet been held. In a fifth suit, after trial before a jury, the plaintiff's complaint was dismissed and counterclaims by the agents resulted in judgments in their favor under which the agents were awarded $15,000 each. This case was appealed by plaintiff and is pending. No suit was filed against the United States as an outgrowth of the Collinsville raids. During the criminal prosecution of the Drug Enforcement agents in the Collinsville cases by the Civil Rights Division, the Department withdrew its representation in the civil suits because of the conflict. After the acquittal of the agents in the criminal case, the Department again tendered its representational services to the agents in the civil suits, which were accepted.

Question 3. (a) How many civil actions have been filed against individual federal employees for violations of the Constitution since January 1, 1968?

Answer. The Department of Justice records are not maintained in such a manner as would enable us to retrieve data which would reflect civil actions against individual Federal employees for violations of the Constitution. We do, however, have some information with respect to such suits which we have compiled recently, but which are not complete, which include suits begun as early as 1969. A list of such suits is attached." Question (b) With respect to each such suit, please indicate:

(i) The facts and alleged constitutional violation.
(ii) The result to date.

(iii) Who is defending these suits, including whether the United States is paying for the defense.

Answer. The attached list will reflect responses to (i), (ii), and (iii). In each case, as indicated, the defendants are represented either by the Department or by private counsel except for FBI Agent Kearney for whom we provide no representation. In both situations, the United States is paying for the defense.

Question. (iv) What defenses are being raised.

Answer. The defenses raised will depend on the vagaries of each case. Generally, the defense of absolute or qualified immunity and jurisdictional defenses addressed to venue, service of process or subject matter are interposed.

1 See p. 101 following.

Question 4. (a) How many criminal proceedings have been instituted against individual Federal employees to date for violations of the Constitution since January 1, 1968?

Answer. We find it difficult to respond to this question because it is prob-
lematic as to which sections of the Criminal Code relate to Constitutional
violations. If the subcommittee furnishes the sections of the Criminal Code
which it believes relate to constitutional violations, we will try to determine
which prosecutions thereunder involved individual Federal employees, and the
disposition of the case. This information is, of course, either in the Criminal
Division or the Civil Rights Divison.
Question. (b) With respect to each proceeding, please indicate:

(i) The facts and alleged constitutional violations.
(ii) Whether any indictments issued.

(iii) Whether the indictments, if any, have been disposed of, and if so, what the disposition was?

(iv) If the United States is paying for the defense.

(v) What defenses are being raised. Answer. The United States does not pay for the defense of a criminal suit brought under a Federal indictment.

Question 5. Does the new section 2679(d) (3) mean that the "exclusive" remedy provision in section 2679(b) does not apply for claims where sovereign immunity has not been waived, e.g., cases falling within the exceptions in section 2680?

Answer. Yes, insofar as the exceptions relate to common law torts. The remedy against the United States is exclusive for constitutional torts.

SECTION 6 OF S. 2117 (§ 2679 (D))

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Question 1. (a) Does the Attorney General have absolute and total discretion to determine whether to certify "scope of office” or “color of law" for purposes of substitution or removal?

Answer. Yes, the Attorney General has complete discretion to determine whether to certify that an employee was acting within the scope of his office or employment or under color thereof. That certification is intended not to be reviewable in a state court for purposes of removal. However, the determination of whether an employee is acting within the scope of his office or under color thereof is reviewable in the Federal courts and is sometimes done by a United States District Court Judge, sua sponte.

Question. (b) What, if any, recourse does the employee have if the Attorney General fails or refuses to certify?

Answer. In the absence of exclusivity, an employee's challenge of a failure to certify would serve little purpose since he would, in any event, be jointly and severally liable for the tort. Moreover, if the plaintiff has sued him personally, and has not sued the United States, it is difficult to see how the employee could compel the joinder of the United States. If, however, there is exclusivity of remedy against the United States, and the Attorney General refused to certify, there appears to be no reason why the employee, sued in a state court, may not challenge the jurisdiction of the state court on the ground that the United States is the only proper party defendant and the United States district court has exclusive jurisdiction because the acts complained of were performed by him within the scope of his duties or office. The certification by the Attorney General is merely evidence of his determination; it is that certification which the state court may not review for the purposes of removal. It is another matter, absent the certification, for the state court to make a determination as to the scope of the defendant's duties for purposes of deciding its own jurisdiction.

Question 2. (a) Can the certification be challenged by a party (a) if it is under 2679(d) (1); (b) if it is under $ 2679(d) (2) ?

Answer. The United States district court may always determine whether a Federal employee whose conduct forms the basis of an action before it, was acting within the scope of his office or employment. The certification (as distinguished from the underlying determination of the Attorney General) as such, is not being reviewed. Under 8 2679(d)(2), a state court must accept

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the certification of the Attorney General for purposes of removal to the Federal court.

Question. (b) If there is a difference in the ability to challenge the certification between 2679(d) (1) and 2679(d) (2), please set forth the reasons for the difference.

Answer. Whether a Federal employee was acting within the scope of his employment presents a Federal question and upon it depends the applicability of the Federal Tort Claims Act and the attendant interest of the United States. The certification of the Attorney General, should, for purposes of removal, be binding on a state court but not on a Federal court. If a state court should disagree with the Attorney General, we would be faced with the possibility of compelling the Attorney General to assert the interests of the United States and the Federal questions they involve in a state court without power of removal.

Question 3. Will the Attorney General make the certification if the Attorney General determines that the employee was not acting in good faith reliance upon either a court order or legislative authorization ?

Answer. Yes. The determination of whether or not an employee is acting within the scope of his office or employment cannot depend on the propriety of his conduct. To interpret it otherwise would make a mockery of the Federal Tort Claims Act. However, criminal conduct, especially that which violates Federal criminal statutes, cannot fall within the scope of any Federal employee's duties or employment. In the case of Constitutional torts, we have extended the requisite determination to include "color of office,” which is much broader, and may include criminal conduct.

SECTION 2679 (F), SECTION 7 OF S. 2177 Question 1. (a) What powers, procedures and remedies—other than criminal prosecution-presently exist by which the federal government may discipline federal employees who violate the constitutional rights of American citizens? Answer. The current provisions of law under which adverse acti

as are instituted against employees under both agency and Civil Service Commission regulations are governed by 5 U.S.C. 8 7501. These provisions are sufficiently broad to encompass any misconduct or improper discharge of one's duties, including the violation of a citizen's rights.

Question. (b) May the Federal Government assess any civil fine against such employee?

Answer. In the context of employee disciplinary matters, employees may be suspended without pay for varying periods of time.

Question. (c) May the Federal Government bring any type of civil action for damages against such employee?

Answer. In disciplinary proceedings there is no known basis upon which the Government may institute civil action for damages against the employee. In many other contexts, of course, the Government may sue Federal employees to recover monies from such employee, such as bribery, presentation of false claims, conversion of Government property, etc.

Question 2. (a) With respect to internal disciplinary proceedings, how many have been filed against government employees for violations of the Constitution since January 1, 1968? (b) With respect to each such proceeding, please indicate :

(i) The agency in which such proceeding took place.
(ii) The facts and alleged constitutional violation.

(iii) The results of any such proceeding. Answer. (a) and (b). The statistics and details with respect to these questions are not available to the Department and cannot be ascertained.

Questions and Answer. (c) Were any such proceedings filed in connection with:

(i) the Collinsville drug raid?
Yes.
(ii) any Cointelpro operations?
No.
(iii) any CHAOS operations?
No.

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