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Question 3. With respect to each disciplinary proceeding referred to in 2.(a) In those cases in which guilt was found, (i) what sanctions were imposed?

Answer. All six Drug Enforcement Agents were suspended, without pay, for 30 days. Some had agency hearings, some did not. One appealed unsuccessfully to the Civil Service Commission. After acquittal in criminal trial, all were restored, suspension was revoked (except unsuccessful appellant) and each received back pay.

Question. (ii) Were any of the subjects subsequently promoted or given merit increases?

Answer. Not definitely ascertained, but we think not.

Question. (iii) Were their careers affected in any way?

Answer. All agents were transferred and the Agent in Charge was demoted. Question. (b) In cases where the subjects were found innocent, what were the basis for the findings-factual innocence or an affirmative defense such as superior orders?

Answer. Each of the Drug Enforcement agents was acquitted on the criminal charges for which they were tried, based on the facts. The agents have so far been successful in their civil suits and have each obtained a substantial judgment against one of the plaintiffs. In neither the criminal nor the civil cases did any of the agents defend on the basis of "superior orders," or any such similar defense.

Question. (c) With respect to each such disciplinary proceeding, will the subcommittee staff be permitted to examine the agency files?

Answer. Yes.

Question 4. Were there Civil Service Commission proceedings in this matter or were they in the particular agency?

Answer. With respect to disciplinary proceedings against the Collinsville Drug Enforcement agents, all proceedings were in the agency initially—one agent appealed to the Civil Service Commission.

Question 5. (a) What, if anything, was the role of the Department of Justice Office of Professional Responsibility?

Answer. The Department's Office of Professional Responsibility did not come into existence until 1975 and played no role in proceedings against the Drug Enforcement agents involved in the Collinsville raids.

Question. (b) Does the Office of Professional Responsibility have jurisdiction over alleged misconduct by employees of agencies other than the Department of Justice?

Answer. No.

Question 6. What procedures are involved in these administrative proceedings?

Answer. Administrative procedures, generally stated, are governed by 5 U.S.C. $7501, and by regulations promulgated by each agency and by the Civil Service Commission. Each employee is entitled to notice of the charges by the agency, an opportunity to respond, receipt of a written decision, and appeal within the agency or to the Civil Service Commission, or both, and judicial review in a court of competent jurisdiction.

Question 7. Is the "forwarding" under paragraph (f) supposed to involve any recommendation by the Attorney General?

Answer. "Forwarding" does not contemplate any recommendation by the Attorney General.

Question 8. Does the head of the Department or agency have complete discretion as to how he will react to the "forwarding" by the Attorney General? Answer. Yes.

Question 9. Does the United States have any conflict of interest in investigating or prosecuting a federal employee for acts with respect to which the United States in a Tort Claims Act case against such employee has been substituted as a defendant.

Answer. No.

Question 10. Of what evidentiary value in an "administrative investigation or disciplinary action" (page 7, line 8) is a court finding of liability in a Constitutional Tort case?

Answer. None. Since the Federal employee in the disciplinary action was not a party to the court suit in which liability was found. Moreover, the employee would have defenses in the administrative proceeding which were unavailable

to the United States in the court suit, such as his good faith belief in the lawfulness of his conduct.

We recognize that the provisions of our proposed subsection (f) to Section 2679 may not be adequate. We are prepared to support and assist in drafting a stronger provision to insure that officers and employees who act improperly respecting the Constitutional rights of the public be disciplined and that the person whose rights have been violated be permitted to participate in such proceedings in a meaningful way.


Question. (a) Will this provision exclude from Governmental liability all situations in which an individual acts under an unconstitutional regulation or an unconstitutional statute?

Answer. Yes.

Question. (b) Why should the United States not be held liable when its officials execute an unconstitutional regulation promulgated by a Federal official acting in violation of the Constitution?

Answer. The Congress has carefully exempted the United States from liability when the claim is based upon an invalid statute or regulation.

Question. (c) Why should the United States not be held liable for violation of someone's constitutional rights by an unconstitutional statute?

Answer. Same as above. There are usually remedies at law for the correction or relief from unconstitutional regulations or statutes. The Federal Tort Claims Act deals with the kind of tortious conduct for which private persons would be liable. In general, these are intentional torts.


Question. (a) Does this exclude liability even if a federal official violates constitutional rights by an abuse of discretion?

Answer. Yes, because the statute expressly so provides.

Question. (b) Aren't many if not most constitutional violations a product of discretionary action?

Answer. Discretionary action is a term of art and has a meaning somewhat narrower than its normal usage. The extent to which constitutional violations may involve discretion are not within the meaning or the purpose of the phrase as used in §2680 (a).

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

Answer. Whatever the discretion was that underlay the activities undertaken in the Cointelpro programs it does not fall within the meaning of the phrase in §2680 (a).

SECTION 2680 (H), SECTION 8 OF S. 2117

Question. 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 the people fired? Answer. To the extent that a constitutional right has been violated through the devices of misrepresentation, deceit, or interference with contract rights, the bill proposes to waive the sovereign immunity of the United States and the suit will proceed. The exclusions, however, should be retained to immunize the United States from liability when misrepresentation, deceit, or interference with contract rights are asserted as common law torts. It should be noted that few tort suits have been brought against individual employees on these grounds, since there is usually an adequate remedy and ample relief under other provisions of law for such matters.

SECTION 2680 (K)

Question. 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.

Answer. If a constitutional violation can arise in a foreign country, then this bill waives the sovereign immunity of the United States from liability for such a tort and the exclusion in subsection (k) will be inoperative as to Constitutional violations but would remain for common law torts.

28 U.S.C. § 2401

Question. 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?

Answer. The applicability of the statute of limitations or whether it has been tolled, or the determination of the date when the cause of action accrues, will be determined by the courts. In malpractice cases, for example, the courts have generally held that the cause of action first accrues when the claimant knows or should have known that his injury was caused by Government medical personnel.

28 U.S.C. § 2402

Question. Does section 2402 bar jury trials in constitutional tort cases? Answer. Yes. Jury trials in constitutional tort cases would be barred.


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

Answer. The text of §2679 (f) is currently being considered for revision. Question 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. Answer. Since, as we have indicated, we have decided not to assert the defense of good faith on behalf of the Government, this question has become moot.

Question 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 in that understanding?

Answer. The memorandum was internal and was intended to be the predicate for further discussion with certain public interest organizations and it may not therefore be considered as modifying the bill. However, certain changes referred to in the memorandum will be made. We will make clear that attorney's fees and costs of litigation apply to all constitutional violations. We intend to include a provision that will permit class actions that meet the requirements of the Federal Rules of Civil Procedure. We shall also propose several other clarifying changes in language.


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