Department has spent over three million dollars for private These manifold flaws in the current law of official liability would be removed by the enactment of S.1775, and we enthusiastically endorse the bill. S.1775 would make the Government the exclusive defendant in virtually all constitutional tort actions in which the Attorney General certified that the employee was acting within the scope of his employment. Furthermore, subject to the exceptions enumerated in 28 U.S.C. 2580, the Government would likewise be exclusively able for common law torts. In addition, for the first time, the United States could be sued for a Bivens or constitutional tort. The exclusive remedy in such a case would also be against the United States. One feature of the bill we especially approve is the retention of the qualified immunity defense and such other immunity defenses as have been recognized by the courts in Bivens actions as available to an individual employee. We strongly believe that such defenses advance the public interest. They frequently disprove the merits of a claim by testing the acts of the challenged official against a standard of reasonableness and good faith. Sound economic reasons also counsel retention of the defenses, nce provision is made for liq datea damages in the event of proof of a constitutional tort. Furthermore, the employee and the agency have a professional interest in avoiding judicial reproaches for conduct which was motivated in goo1 faith upon reasonable grounds. Finally, the absence of a good faith defense would make public officials reluctant to take action where the law is uncertain. To safeguard against the possibility of an adverse court judgment and financial liability, officials would be restricted to action that is indisputably legal. Regrettably, areas of legal certainty are diminishing, and eliminating a good faith defense could discourage progressive and enlightened policies in the numerous areas where the law is unfolding or equivocal for fear of financial liability. We do have on additional recommendation. 28 U.S.C. 2672, which is amended by S.1775, provides for the administrative adjustment of claims up to $25,000 by the head of each federal agency, in accordance with regulations prescribed by the Attorney General. Section 2672, whose purpose is to ease court congestion and avoid unnecessary litigation, was enacted in 1966 and has not since been amended. We suggest that the $25,000 figure be adjusted upward to $50,000, thereby increasing the authority of the agencies to settle or compromise claims from $25,000 to $50,000. Such an amendment would facilitate disposition of monetary claims by providing for greater agency flexibility. It would also enable the Department of Justice to devote greater attention to those cases which involve more difficult legal and factual issues. In summary, I would emphasize once again that this legislative initiative offers a meaningful, attainable remedy to a citizen who has suffered a constitutional deprivation. At the same time, it dispels the cloud of potential personal liability that currently hangs over almost every federal public servant. Through this legislation, the citizen can obtain redress and the public official can conscientiously perform his mission. The citizen, the Government and the public are all the beneficiaries. FOOTNOTES 28 U.S.C. 1346 (b), 2672 and 2674. See 28 U.S.C. 2680. E.g., 28 U.S.C. 2679 (b) (drivers of motor vehicles); 38 U.S.C. 4116 (medical personnel employed by the Veterans Administration); 26 U.S.C. 7426 (d) (employees levying on property to collect federal taxes immune from suit brought by persons other than the taxpayer claiming an interest in the property); 28 U.S.C. 1498 (employees sued for patent infringement); 46 U.S.C. 746 (employees sued for unlawful seizure of sea going vessels). 8/ Halperin v. Kissinger, No. 79-880, June 22, 1981. Doe v. United States Civil Service Commission, 483 F. Supp. 539 (1980). 9/ Conset Corporation, et al. v. Community Services Administration, et al., C.A.D.C., No. 80-1547, June 5, 1981. 10/ See, e.g., House Hearings at 31 (statement of John S. McNerney). 11/ ASKEW v. BLOEMKER, S-CIV-73-79 (S.C. Ill., Sept. 29, 1978). DEA agent was held personally liable for violating the Fourth Amendment rights of three plaintiffs by conducting a search without probable cause or a warrant; the jury awarded damages of $22,000; plaintiffs agreed not to enforce the judgment against the uninsured Federal agent but rather to proceed against defendant state employees who were insured. SEGUIN v. HIGHTOWER, No. C76-182-V (W.D. Wash., Oct. 24, 1978). Customs agent held personally liable to the owner of an impounded car used in a smuggling scheme because the agent delayed four and one half months in initiating forfeiture action; the court awarded the plaintiff $7,300 for rental value of the car plus consequential damages; the case is on appeal. JIHAD V. CARLSON, CA No. 5-71-805 (E.D. Mich., Oct. 18, 1976). Prison guard held personally liable for $992 to inmate for violating his right to religious freedom in placing him in segregation for refusing to shave his beard; the judgment was reversed on appeal. WEISS V. LEHMAN, CA No. 375-36 (C.D. Idaho, July 14, 1978). Forest service ranger held personally liable for $1,000 for violating plaintiff's Fifth Amendment rights by destroying property owned by plaintiff which had been apparently abandoned; the Ninth Circuit Court of Appeals affirmed the judgment. A Petition for Writ of Certiori was filed in the Supreme Court. We have just been advised that the Court has granted the petition and remanded the case for reconsideration (No. 80-2159, Oct. 5, 1981) in light of Parratt v. Taylor, 49 USLW 4509, May 18, 1981. HALPERIN V. KISSINGER, 424 F. Supp. 838 (D. D.C. 1976) and 434 F. Supp. 1193 (D. D.C. 1977). Former President Richard Nixon, H.R. Haldeman and John Mitchell held personally liable in damages for violating plaintiffs' Fourth Amendment rights in authorizing wiretaps. DELLUMS v. POWELL, 566 F.2d 167 (D.C. Cir. 1977). Chiefs of U.S. Capitol and D.C. Police held personally liable for arrests at Capitol Building during anti-war demonstration in class action with 1,200 plaintiffs; a total judgment of approximately 2 1/2 million dollars plus interest was entered against all defendants and subsequently paid through Congressional action. TATUM v. MORTON, 562 F.2d 1279 (D.C. Cir. 1977). Inspector of D.C. Police held personally liable for $500 for disrupting 29 demonstrators at the White House. SCHONEBERGER v. HINCHCLIFFE, C.A. No. 76-234 (D. Vermont, Sept. 22, 1980). FBI agent personally held liable for $150 for retaining a firearm (for too long a period) seized during a raid for illegal aliens. SAXNER V. BENSON, C.A. No. 75-47-C (S.D. Indiana 1981). Three members of a Federal Corrections Institution Disciplinary Committee held personally liable for $3,000 apiece for violating an inmate's procedural due process rights; a motion for reconsideration has been filed. 12/ In the Weiss case cited in the previous footnote, the plaintiff, for example, sought a total of $148,000 in damages. The jury thus could have awarded that amount against that forest ranger. 13/ 28 U.S.C. 2680 (h). 14/ 28 U.S.C. 2679 (b). 15/ 16/ Hohensee v. Carter, C.A. No. 78-345 (M.D. Pa.). 46 U.S.C. 745. 17/ See, e.g., Seguin v. Hightower, No. C-76-182-V (W.D. Washington, Oct. 24, 1978). 21/ AETNA Casualty & Insurance Co. v. United States, 570 F.2d 1197 (4th Cir. 1978). 22/ 28 U.S.C. 2680 (h). 23/ In Halperin v. Kissinger, 434 F. Supp. 1193 (D. D.C. 1977), for example, after plaintiffs proved that they had been subjected to unlawful telephone wiretaps for a period of twenty-one months, they were awarded nominal damages of $1 each. Senator GRASSLEY. Before I call the next witness, I want to say that at 10:30 there are scheduled, in the Budget Committee, three back-to-back votes and we don't have a proxy rule in the Budget Committee so I'm going to have to go vote on those. It is my wish, because I would rather not have staff take testimony, just to have short, brief recesses of the committee meeting, and my desire would be to go right through until we complete the hearing without breaking for lunch or anything. So, I ought to apologize in advance. It may be that right in the middle of somebody's testimony I'll have to just recess the hearing to go to the Budget Committee because we don't have a 15-minute rule. Our next witness is Mr. Mark Lynch with the American Civil Liberties Union. I understand, Mr. Lynch, that due to his teaching schedule, Professor Neuborne is unable to testify today. Mr. Lynch, we appreciate your being here today and we're interested in hearing what you have to say on this legislation. Thank you very much. Mr. LYNCH. Thank you very much, Senator. We very much appreciate the opportunity to appear today on behalf of the American Civil Liberties Union. Professor Neuborne of the New York University School of Law has prepared a statement which we have submitted. I would like to extend Professor Neuborne's personal regrets for being unable to attend today because, as the Senator pointed out, he had a teaching commitment. I think perhaps the most useful way for me to proceed, particularly in light of the time constraints that we're under, would be to summarize the statement, and if I could have the statement submitted in the record as written, I would appreciate that. Senator GRASSLEY. Yes; that will be standard procedure for everybody who so wishes; their entire statement will be put in. And I would encourage witnesses to summarize so that we have time for questions. Thank you. Proceed. STATEMENT OF MARK H. LYNCH, STAFF ATTORNEY, AMERICAN CIVIL LIBERTIES UNION, ON BEHALF OF PROF. BURT NEUBORNE, NEW YORK UNIVERSITY SCHOOL OF LAW Mr. LYNCH. Thank you. The ACLU is opposed to S. 1775 because, while we are sympathetic to the problem of providing a deep pocket defendant so that people whose constitutional rights have been injured can recover adequately, and while we are also sympathetic to the problem of good faith defendants being needlessly enmeshed in litigation, and while we wish that these problems could be solved, we do not think that S. 1775 is the right way to do it. We think that S. 1775 rests on a number of unsound policy judgments and may be unconstitutional as well. There are three problems with S. 1775: It deprives or eliminates the concept of any individual personal accountability. It deprives victims of unconstitutional action the opportunity to recover punitive damages. And punitive damages are particularly important be |