STATEMENT OF LAWRENCE A. CRESCE PRESIDENT ASSOCIATION OF FEDERAL INVESTIGATORS BEFORE THE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300420006-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 6
• Publication Date: April 28, 1983
• Content Type: REPORT

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LAWRENCE A. CRESCE, PRESIDENT
ASSOCIATION OF FEDERAL INVESTIGATORS
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
FEDERAL TORT CLAIMS ACT
ON
APRIL 28, 1983
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Mr. Chairman,
On behalf of the Association of Federal Investigators
(AFI), I welcome this opportunity to comment on H.R. 595.
This bill is of-utmost concern not only to the Federal
law enforcement community, but to all Federal officials making
decisions involving personnel in and out of Government.
In 29 years as a Federal investigator, with the last 3
as the Assistant Inspector General for Investigations in the
Office of Inspector General, Department of Transportation, I
have observed first hand the need for revision of the Federal
Tort Claims Act.
I have friends and colleagues who, having dedicated
their lives to fulfilling their sworn obligation to defend
and support the Constitution of the United States, have had
to protect themselves and their reputations against law
suits, involving Constitutional torts, many of which have
proven to be without substance and are vindictive in nature.
The current Vice President of the Association of Federal
Investigators was named as a defendant in a suit filed in a
United States district court on April 12, 1982. He and three
other individuals were sued for over $52 million, both indi-
vidually and in their official capacities as Government
officials. There are two similar suits pending in my agency
against investigators and auditors as well as the Inspector
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General and the former Secretary of Transportation. One,of the
plaintiffs was recently convicted for fraud against the Govern-
ment; the other is awaiting arraignment on similar charges.
It is not my intention to dwell on the merits of these
suits, but I do believe that some of the implications and
ramifications deserve comment. Under our present system, any-
one can charge that he/she has been injured by the actions of
certain officials and lay claim for damages. The complaint
can make statements specifying certain actions on the part of
the defendants for which the "aggrieved party" is seeking
remuneration. The greater the amount of compensatory or puni-
tive damages, the more likely the charges will receive media
attention.
The defending officials are often precluded from
responding to inquiries from the media regarding such charges
because of various restrictions, including the Privacy Act.
In effect, the charges are aired, sometimes sensationally,
while the defendants quietly go about defending themselves
for actions they took in performing their official duties.
In cases where the plaintiff is a Government employee,
such suits may be filed against Government officials, even
though there are other appeal rights to which he may or may
not have availed himself. Most agencies will have a griev-
ance process in which a grievance examiner will present his
findings to an independent deciding official. Should the
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deciding official uphold the agency, the employee may request
the Office of the Special Counsel to conduct an independent
review if the complaint pertains to a personnel action. Again,
should the Office of the Special Counsel fail to uphold the
employee's position and the agency decides to take an adverse
action, the employee may appeal to the Merit Systems Protection
Board.
An employee who feels he has been wronged may institute
suit at any point regardless of the merits. Response to such
action is often burdensome to the officials involved, their
general counsel and the United States Attorney's office. Since
most components within the Federal Government are not geared
toward this type of activity, it will force significant dis-
traction from assigned duties. In the case of vexatious or
nuisance suits, this represents a gross waste of Federal funds
and human energy that should be spent on more worthwhile
projects.
The mere threat of being "named" in such a suit will
deter many officials from taking decisive, required actions.
They will look for an easier way out. Vacillation, delay,
ineffective decisions and permissiveness result. Such atti-
tudes do not go unnoticed in the workforce. Malcontents will
take advantage of the resultant laxity. It will also adversely
affect the morale of the other employees who strive to do what
is necessary and proper, and yet see a certain few of their
peers "manipulating" the system.
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I would like now to focus briefly on the Federal
investigator. Most of the Bivens type cases involved law
enforcement officers alleged to having committed Constitu-
tional torts. Of the thousand or so cases filed to date,
there have only been a handful of adverse judgments, several
of which are under appeal.
I think we can arrive at two conclusions from these
statistics: First, the vast majority of investigators perform
their duties in a competent, legal manner and are loyal to
their oath to defend and support the Constitution of the
United States. Secondly, a vast majority of suits are
insupportable.
In most of those instances where an aggrieved party is
seeking redress, I think you will find that the injury, if
there indeed was one, was not one of willful intent on the
part of the investigator, but was simply an error of omission
or commission, in which case the United States Government
is truly the responsible party for having failed to properly
train and supervise its agent. The Association of Federal
Investigators, by working closely with various investigative
bodies, hopes to provide the necessary guidance and training
to eliminate such instances or, failing this, to keep them
at an absolute minimum.
It is with this background that the Association of
Federal Investigators supports the goals of H.R. 595. We do
recommend, however, that certain amendments be considered.
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We believe that the "good faith" defense should be retained
and not waived. Should the United States substitute' itself
as the defendant, we believe that is is entitled to the
attendant defenses otherwise available to its employees.
Also, we do not support the provision in H.R. 595
permitting payments to claimants for reasonable attorneys'
fee in matters involving Constitutional torts. To create
such a distinction would, in our view, bring about merely
artful pleading on the part of a creative lawyer and protracted
litigation in determining whether a particular tort was
properly pled. This provision would not serve the cause of
justice or equity but would simply lead to larger attorney
fees, however "reasonable" they might be. In short, it
would be counterproductive.
Mr. Chairman, if N.R. 595, with the above modifications,
is enacted, it would reaffirm to all Federal investigators that
the United States Government expects them to perform their duty
in a proper and forthright manner, and that it is willing to
stand behind them while they are acting within the scope of
their employment. It would also remove the chilling effect
that potential personal liability has on program managers
and supervisors to take appropriate adverse actions against
subordinates when circumstances and duty dictate.
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The foregoing in no way proposes to shield from
appropriate punitive action any official who deliberately or
willfully violates the rights of others.
Passage of H.R. 595 should take away any incentive to
file spurious, vindictive, or frivolous legal actions by those
seeking retribution against any Federal employees who act
within the scope of their duties.
In conclusion, the Association of Federal Investigators
strongly urges passage of H.R. 595.
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