ice Commission's Appeals Review Board for specific cases, but I know they exist. Senator GRASSLEY. So, would you provide us some of these? Mr. SHAW. I will check with those two Government agencies to see what they have on that; yes. Senator GRASSLEY. Thank you very much for your testimony. [The prepared statement and letter submitted by Mr. Shaw ́follows:] PREPARED STATEMENT OF G. JERRY SHAW MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE. Good morning. My name is Jerry Shaw. I am President of the Senior Executives Association, the voluntary, professional organization that speaks on behalf of career members of the Senior Executive Service and supergrade executives. I appreciate the opportunity to appear before this Subcommittee to support S. 1775. The Federal executive today is beset by numerous obstacles in performing effectively the work of the public service. While this is my first time to testify before this subcommittee, I have appeared before several other Committees of both Houses on a host of issues that impinge on the daily management of the Government's programs. While many other issues such as the restric tions on Federal pay and on Senior Service bonuses are receiving widespread attention in the press, I know of no issue which strikes more viciously at the morale of Federal managers and executives than the knowledge that they may be personally sued for actions performed within the scope of their jobs. Those suits may be as serious as violations alledged in areas where the law is unclear or they may be as trivial as allegations solely for the purpose of embarrassing a public manager. The fact that only 9 of some 1500 cases brought against Federal managers have resulted in judgements against the defendent suggests that most cases are marked by such trivial qualities. The knowledge that your employer may choose to disassociate itself from your defense considerably alters the enthusiasm one has for management. There are those who argue that such threats are necessary to produce a chilling effect on the arbitrariness of otherwise unchecked Government administrators. We suggest that the evidence of such arbitrariness is rare, that other administrative procedures exist to correct and punish such caprice and that the present laws result not in prudent management but in supine Federal administration whenever the limits of the law are fuzzy. As you are aware, the Congress expects that agencies be ruled by its intent as well as by its laws. Such opportunity for interpretation produces areas of uncertainty that still require executives to act. Although I speak on behalf of the 7,500 career executives and by extension the 125,000 senior managers who have been charged with the efficiency of operations in the Government, I truly believe that legislation such as that before this Committee is in the interest of all parties-not just the group for which I speak. A deserving plaintiff would have a liberalized basis for recovery from the United States. Federal employees acting within the scope of their employment would no longer be subjected to the intimidation or harassment by lawsuits which could ruin them financially. The Federal Government would benefit financially by no longer having to spend money to retain private counsel to represent Federal employees in certain suits. Passage of this type of legislation would lend certainty to a confused area of law. As a result of prior legislation, some Federal employees in certain situations now are immunized from suits against them personally, while other Federal employees are not. In 1961 Federal employees who were operating motor vehicles within the scope of their employment were immunized from suit. [28 U.S.C. § 2679] In 1965, Veterans Administration medical personnel were provided a similar type of statutory immunity. [38 U.S.C. § 4116] In 1970, Public Health Service medical personnel received similar immunity. [42 U.S.C. § 233] In 1976, immunity was extended to medical personnel employed by the Department of Defense, the Central Intelligence Agency and NASA. [10 U.S.C. § 1089, 42 U.S.C. § 2458a] The type of legislation now under consideration would take the logical step of extending the immunity from personal suit uniformly to cover all Federal employees acting within the scope of their employment, and would also make clear that the immunity is applicable in suits which have come to be known as being based upon "constitutional torts". By so doing, the legislation would end the uncertainty and unfairness which prevails when different Federal employees are subject to different laws regarding their personal liability. By placing this statutory immunity within the provisions of the Federal Tort Claims Act, Federal employees, litigants and the courts will have the benefit of guidance in the form of case law resulting from the prior statutes which would be applicable as legal precedent. Providing Federal employees with immunity from a lawsuit against them personally based upon the performance of their duties is consistent with the concept of obtaining the best performance possible from those Federal employees. Eliminating the specter of harassment and/or the possibility of personal liability allows Federal employees to focus totally upon their job performance without being intimidated by the possibility of a lawsuit. Thus, they can confidently take the course of action which is best for all affected thereby without considering the temptation of taking the safest action in terms of producing controversy, novel action, or lawsuits. I attack head-on any suggestion that the possibility of suit against individual Federal employees personally is necessary or desirable as a guard against improper action by Federal employees. I know, for example, of no evidence that drivers of Federal vehicles have become more accident-prone since they received statutory immunity in 1961, or that various categories of Federally employed medical personnel became less dedicated or less able after various statutes provided immunity to them in 1965, 1970, and 1976. There are adequate existing controls on the acts of Federal employees, without needing the threat of a personal lawsuit. I believe that to almost all Federal employees the accountability to supervisors which governs assignments, evaluation and promotion is the most direct type of control. In addition, I cannot over-emphasize the fact that the activity of the many Federal employees for whom I speak is governed by their respective codes of professional conduct and their general professionalism and ethics. It must also be remembered that although the proposed legislation would immunize the individual, a lawsuit against the United States based upon an employee's conduct would nevertheless directly bring into question the activity of that individual. Such a lawsuit would thus involve the reputation of the employee whose conduct was questioned. But more directly, the proposed legislation expressly states that in cases of constitutional torts, if a suit results in a settlement or judgment paid by the United States, the Attorney General "shall" forward the matter to the head of the department which employed that individual for appropriate administrative investigation or disciplinary action. The laws available to the chief agency administrator or to the Inspectors General provide sufficient basis for disciplining employees for irresponsible acts. We believe that this provision which allows for appropriate administrative flexibility is far superior to any provision which would attempt to establish by legislation prospective specific disciplinary measures for every conceivable type of misconduct. There is no question that Congress has the ability and authority to establish the Federal Tort Claims Act as an exclusive remedy. In Carlson v. Green, 446 U.S. 14, 18-19 (1980), the Supreme Court held that the availability of a remedy under the Federal Tort Claims Act did not preclude a Bivens suit because Congress had not explicitly declared the FTCA remedy to be a substitute for recovery directly under the Constitution and viewed as equally effective. Passage of this legislation would provide that explicit declaration that the Federal Tort Claims Act remedy is to constitute an equally effective substitute for recovery directly against a Federal employee acting within the scope of his employment based upon either the common law or an action under the Constitution. Significantly, in the Carlson decision, at page 20, the Court noted that in the past Congress had explicitly stated its intention to make the Federal Tort Claims Act remedy exclusive, citing the statutory immunity statutes applying to Federal automobile drivers, medical personnel employed by various Government departments, and the manufacturers of swine flu vaccine. The proposed legislation is patterned upon those statutes and thus would receive a similar judicial interpretation. That is quite important because those statutes have repeatedly withstood any challenge to their constitutionality. The necessity for this legislation cannot be played down by rhetoric. The proposal is not in any way an over-reaction. As Deputy Attorney General Schmults noted, there are approximately 1,500 lawsuits, many with multiple individual Federal employee defendants. The issue that should be addressed is whether thousands of Federal employees and their families should be put through the ordeal of suit, the accompanying worry and the possibility of financial ruin so that the rare Federal employee who in the minds of some may deserve to pay personally will not escape. I submit that this is far too high a price to pay. The thousands of innocent Federal employees should not be punished for occasional acts of a small number of individuals. The optimism expressed in Butz v. Economou, 438 U.S. 478, 507 (1978) that insubstantial lawsuits against Federal employees could be quickly terminated upon motion has proved to be an illusion. Instead, the prediction expressed in the dissent in Butz, page 527, has proved accurate. It has proved to be easy to allege facts sufficient to survive a motion and require a full trial. A recent extreme example occurred in the Black Panther Party, et al. v. Smith (D.C. Cir., No. 80-1302, July 8, 1981). In that case a number of high ranking government officials who were sued filed affidavits stating that they were not in office at the times of the acts alleged and disclaiming any knowledge of or participation in a conspiracy against the appellants. The District Court granted their motions for summary judgment, but the Court of Appeals reversed that decision on the basis that the plaintiff was entitled to more discovery. |