FEDERAL TORT CLAIMS ACT AMENDMENTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000600320013-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 19, 2016
• Sequence Number: 13
• Content Type: MEMORANDUM FOR THE RECORD

Approved For Release 2006/08/01: CIA-RDP81 M00980R00060..3200,13.-7
OLC 78-836/4
26 July 1978
SUBJECT: Federal Tort Claims Act Amendments
The Metzenbaum version (S. 3314) of the Federal Tort Claims Act which
supplants S. 2117 calls for the substitution of the U.S. Government as
defendant for employees of the Government who commit torts within the
scope of their duties or under the color of Federal law.
The bill is not, in total,. reprehensible; and it is my opinion that
we can, if necessary, live with it. The following comments outline the
bill's most significant provisions which may have an effect on the Agency.
SUBSTITUTION OF GOVERNMENT FOR E1PLOYEE
1. AAtttorneX's fees plus "other litigation costs reasonably incurred"
are both provided for S. 3314 (Sec. 3(b)).
2. Liquidated damages are provided for when violation (of Constitutional
rights) complained of is greater than one day in duration (Sec. 3(b)).
3. Class actions are provided for in the bill (Sec. 4(b)).
4. The remedy against the Government is exclusive (Sec. 6(b)(1)).
Presidential appointees and former employees are omitted from foregoing--
i.e., they can be sued. FSO's are not, for purposes of this bill, defined
as Presidential appointees.
5. The Attorney General certifies (or denies) that charged employee
was acting within the scope of employment or under color of the law.
Certification is conclusive (Sec. 6(d)C2)).
6. Foreign Constitutional Torts are included as those for which the
Government will be substitute. as defendant vice offending employee (Sec. 9(a)).
7. Bill is applicable not only to suits instituted after enactment, but
also to those pending on date of enactment. (Decision to substitute Government
for employee on those suits already pending is in discretion plaintiff)
(Sec. 12).
 Approved For Release 2006/08/01: CIA-RDP81 M00980R000600320013-7
AGENCY DISCIPLINARY MEASURES
1. Successful plaintiff may request an administrative inquiry within
60 days after obtaining a monetary recovery (either through litigation or
settlement Sec. 7802(a)).
2. If action is brought under 28 U.S.C. 1346(b) and it is an alleged
Constitutional Tort, plaintiff may request an inquiry merely after filing
suit (i.e., unlike 1. supra no prior idgment.required- where Constitutional
Tort is involved) sec. 7802(b)).
3. Inquiry to be conducted by head of agency or designee is mandatory.
Agency head may terminate inquiry'if he finds allegation(s) unsubstantiated
Sec. 7$03 (bj -
4. If evideennce rye uired to make a determination re validity of accusation,
.a hearing will be held. Need: genuine, material and substantial dispute of fact
(Sec. 7803(b)).
a. Person requesting inquiry may appear and, give testimony.
b. Right of plaintiff'to cross-examine, call witnesses or
request documents is in sole and unreviewable discretion of
agency head.
c. Head of agency or designee determines need or lack thereof
for disciplinary action against charged employee.
5. Review of Administrative Hearing (Sec. 7803(c))
a. Plaintiff may request review of agency decision by appropriate
body (IOB for CIA).
'b.' Reviewing body may substitute; its judgment for that of the
Agency Head.
c. Body may give individual the right to examine and cross-examine
witnesses. This discretion of the body is sole anunreviewable.
6. District Court (Federal) Review (Sec. 7803(d)),
a. Person may petition for District Court Review within 60 days
of the decision of thee Administrative Review board.
b. Court may deny petition; affirm decision; or remand for further
proceedings.
c. Review must be held in camera for matters protected from disclosure
by statute or Executive Order relating to national security, national
defense or foreign affairs, or in the court's own discretion if it determines
in camera review is necessary.
 Approved For Release 2006/08/01: CIA-RDP81 M00980R000600320013-7
7. a. Administrative Review to be conducted for CTA by body designated
by President p(-resumably IOB (Sec. 7805(e
b. Body shall propose reguldti.ons for review to which head of
Agency shall comply.
c. Regulations shall be submitted for ublic comment and be subject
to judicial review er the pdmi.n. Proc. Act .
I will be happy to discuss with you the foregoing at your leisure either
this afternoon or tomorrow. We should move quickly, if we are to move, as the
bill may go before the full Committee tomorrow morning.
Assistant Legislative Counsel
Distribution:
1 - FPH
1 - LLM
1 0GC
1 - OLC Subject
1 - OLC Chrono
OLC:MDC: sm: (26 July 78)