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LETTER FROM ATTORNEY GENERAL TO SENATOR METZENBAUM, JANUARY 20, 1977: ANSWERS TO QUESTIONS ON S. 2117

ASSISTANT ATTORNEY GENERAL

CIVIL DIVISION

Department of Justice
Washington, DC. 20530

January 20, 1978

Honorable Howard M. Metzenbaum

Chairman

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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JUSTICE DEPARTMENT RESPONSES TO DECEMBER 14, 1977,
QUESTIONS ON S. 2117

SECTION 3 OF S. 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 §1346 (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. §2520 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.1

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 8, 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 com

1 See p. 48.

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pensatory damage sustained," regardless of the existence of a good faith defense?

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 is 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 §2678.

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 (b) 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

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