FEDERAL TORT CLAIMS ACT AMENDMENTS (FTCAA)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000400020005-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 20, 2016
• Document Release Date: May 16, 2007
• Sequence Number: 5
• Publication Date: May 1, 1979
• Content Type: MF

Approved For Release 2007/05/17: CIA-RDP80SO1268AO00400020005-3
INTERNAL USE ONLY OLC RECORD COPY
OLC 79-0079/11
1 fMayA 1979
MEMORANDUM FOR: Frederick P. Hitz
Legislative Counsel
Assistant Legislative Counsel
SUBJECT: Federal Tort Claims Act Amendments (FTCAA)
1. The undersigned, in a long conversation with attorneys at the
FBI Office of Congressional Affairs, learned the following regarding
developments with the FTCAA. (U/IUO)
2. Late last week a meeting was held with the following persons in
attendance:
Patricia Wald, Assistant Attorney General
Representatives of the FBI
Keith Raffell, Senate Select Committee on Intelligence
Nells Atkerson, General Counsel, Senate Judiciary
Subcommittee on the Constitution
Jessica Josephson, Professional Staff Member,
Senate Judiciary Subcommittee on the Constitution
3. The general feeling that FBI officials gained from the meeting
was that the FTCAA was in trouble and was, in effect, being held hostage to
the Charters issue. That is, it was felt, that to get one all involved would
have to accept the other. This was particularly relevant in light of the
recent statement of Attorney General Griffin Bell which demonstrated less
than strong support for an FBI Charter. (U/IUO)
4. Not surprisingly, those present from the Congressional side stated
that the bill was still not entirely to their liking. In that regard they
made the following points:
-- The review to be conducted by the Merit System Protection
Board (in the case of CIA it would presumably be the IOB) ought
to be a de novo review rather than one based on the record
utilizing a reasonableness standard
7 Pevievy c:vrriplete(
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-- The Agency disciplinary proceeding ought to be
automatic upon judgment or settlement of a claim.
-- Agencies conducting disciplinary proceedings ought to
be required, by the terms of the bill, to invite citizen
participation (aggrieved parties) in any disciplinary
proceedings held. At present the invitation or lack thereof
is at the sole and unreviewable discretion of the Agency head.
-- The structure of Agency disciplinary proceedings should
be strictly specified in the terms of the bill, rather than
leaving it up to individual agencies' internal regulations,
as is the case in the current rendition of the FTCAA.
-- Sanctions available against former employees and
Presidential appointees (1/12 of highest yearly salary) is
arbitrary and insufficient.
-- In the case of issuance of public reports regarding the
outcome of disciplinary proceedings, the same should be auto-
matically referred to the Chairman of the Senate Judiciary
Committee for investigation of possible impeachment proceedings
(Presidential appointees).
-- The bill's current damage limitations of $15,000 and
one million dollars for continuing and class action Constitutional
torts respectively is unrealistically low.
5. As to the foregoing issues the FBI has initially, pending further
examination, taken the following positions:
-- The review ought not be de nova. To make it so would
unnecessarily take away from the authority of the Agency head
and would moreover encourage appeal from the Agency determination,
whether reasonable or not.
-- FBI agreed that automatic disciplinary proceedings were
acceptable as this is the case with current complaints.
-- FBI, for the same reasons that we argue, strongly
disagrees with automatic citizen participation.
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-?- FBI disagrees that the structure for the Agency
disciplinary proceedings ought to be in the Act itself as
this would be needless Congressional meddling in internal
Agency affairs and that each Agency is different and it would
be impossible to formulate a proceeding that would meet every-
one's needs adequately.
-- The sanctions are not arbitrary but are instead sensible
as they are tied to what measures are available against
current employees.
-- FBI does not care if the public reports are forwarded
to the Chairman of the Judiciary Committee or not.
FBI argued that rather than being unrealistically low, the
damages for continuing and class action torts are somewhat
too high.
6. In sum, it appears that this long awaited (at least as far as FBI
is concerned) bill is again in trouble on the Hill and that demands by
Congress are reaching the point that the balance in favor of the bill,
if it was ever so, is being titled dangerously in the other direction. (U/IUO)
7. Other recent developments include the fact that the American Bar
Association has reaffirmed its pledge to support the bill; the Office of
Management and Finance within Justice is compiling a cost analysis and
various Bar associations are undertaking studies regarding the affect of
the bill on their membership. (U/IUO)
8. As regards the CIA position, attorneys of OGC and the undersigned
will be meeting in the very near future to discus the same. (U/IUO)
Distribution:
Original - Addressee
1 - OGC,
1 - OGC,
1 - OLC u~ bject
1 - OLC Chrono
OLC/MDC:baa (27 Apr 79)
i NAL USE ONLY
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