TESTIMONY BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS HOUSE COMMITTEE ON THE JUDICIARY ON H.R. 595 (AMENDING THE FEDERAL TORT CLAIMS ACT)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300420009-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 9
• Publication Date: April 28, 1983
• Content Type: REPORT

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ONE PAGE SUMMARY OF TESTIMONY
Testimony before the
Subcommittee on Administrative Law and Governmental Relations
House Committee on the Judiciary
on H.R. 595 (amending the Federal Tort Claims Act)
by Richard K. Pelz, President-Elect
Federal Executive and Professional Association
April 28, 1983
The Federal Executive and Professional Association is a merger of
the Federal Executives League, the Federal Professional Association, and
FED-42. We are interested in improving the effectiveness of the Federal
service through the attainment of high levels of professionalism.
We support H.R. 595 and urge its prompt enactment with two minor but
important additions.
H.R. 595 has two main purposes. The first is to extend to all com-
mon law torts the principle, now applicable in motor vehicle accident and
malpractice cases, that the remedy against the United States is exclusive.
This is similar in effect to granting liability insurance to Federal em-
ployees, and will protect them and their families from the risk of finan-
cial catastrophe.
The second main purpose of H.R. 595 is to authorize suits against
the United States for damages for constitutional. torts and to provide that
this shall be the exclusive remedy. Thfs will eliminate the damage done by
the Bivens rule to the effective functioning of the government. The bill
authorizes the payment of actual or liquidated damages to compensate the
victim. We enthusiastically endorse the further provision for additional
damages up to $100,000 where the tortious conduct was undertaken with the
malicious intention to cause a deprivation of constitutional rights or with
reckless disregard for the plaintiff's constitutional rights. This will
afford an opportunity for the public through the voice of the court to make
a statement that the abuse of authority is unacceptable in a democratic
society and should not be condoned or repeated.
The provision that the United States may assert the defense of the
absolute or qualified immunity of the Federal employees involved is logi-
cally inconsistent where the immunity is based on the need to avoid expo-
sure to personal liability, because the bill eliminates this exposure. We
recommend that the reference to this defense be eliminated or qualified.
We recommend that the section requiring reference to the agency head
for disciplinary proceedings be amended to require reference also to the
Merit Systems Protection Board, because the agency head frequently must
share responsibility for the wrongdoing.
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TESTIMONY BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS
HOUSE COMMITTEE ON THE JUDICIARY
ON
H.R. 595
(A BILL AMENDING THE FEDERAL TORT CLAIMS ACT)
BY
RICHARD K. PELZ
PRESIDENT-ELECT
FEDERAL EXECUTIVE AND PROFESSIONAL ASSOCIATION
APRIL 28, 1983
Mr. Chairman and members of the subcommittee. I am Richard K. Pelz,
President-Elect of the Federal Executive and Professional Association. Our
Association is a merger of the Federal 'Executive League, the Federal Pro-
fessional Association, and FED-42. We are interested in improving the ef-
fectiveness of the Federal service through the attainment of high levels of
professionalism.
We appreciate the opportunity to appear at the hearing today and
present our views on this legislation which touches on important aspects of
the way in which Federal executives and professionals perform their duties.
We strongly recommend the enactment of H.R. 595, although we suggest two
minor but important additions.
H.R. 595 is the product of a great deal of public discussion and of
considerable effort and thought by the subcommittee and staff over a period
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of several years. It would amend the Federal Tort Claims Act for two prin-
cipal purposes: First, the extend to all tort actions the principle now
applicable to motor vehicle accident and medical malpractice cases that the
suit against the United States is the exclusive remedy; and second, to pro-
vide for a new remedy against the United States, also exclusive, for the
recovery of monetary damages for deprivations of constitutional rights.
The proposed extension of the exclusive remedy principle to all
suits based on traditional common law torts is similar in effect to grant-
ing liability insurance to all Federal employees, but recognizes that the
United States acts as a self-insurer. It will relieve the individual em-
ployee and his or her family from the threat of financial catastrophe as
the result of an adverse judgment.
The proposed new chapters on constitutional torts is a legislative
response to the forces set in motion by the Supreme Court in 1971 when it
held, in the case of Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, that Federal employees could be sued for
the recovery of money damages by persons claiming that the employees had
violated their constitutional rights. Bivens involved allegations that the
defendant agents entered the complainant's apartment without a warrant and
arrested him for alleged narcotics violation; manacled him in front of his
wife and children, and threatened to arrest them as well; and searched the
apartment from stem to stern. The Court held that a damage action against
the agents was a proper remedy for the alleged violation of the Fourth
Amendment protection against unreasonable searchers and seizures.
The doctrine subsequently was extended to violations of the First
Amendment protection of free speech, Butz v. Economou, 438 U.S. 478 (1978)
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(allegations that defendants instituted an investigation and administrative
proceedings against complainant to revoke his registration as a commodity
futures commission merchant because he had openly criticized them); the
Fifth Amendment protection against the deprivation of the equal protection
component of due process of law, Davis v. Passman, 442 U.S. 228 (1979)
(allegation that complainant was fired by a United States Representative
because of her sex); and the Eighth Amendment proscription against cruel
and unusual punishment, Carlson v. Green, 446 U.S. 14 (1980) (allegation
that complainant's son died in a Federal prison because he received impro-
per medical attention).
We believe that the decision of the Supreme Court in the Bivens case
was unfortunate in opening the door to suits against Federal employees for
liability in damages to persons alleging that their constitutional rights
have been violated. The flood of litigation which has ensued has harmed
rather than advanced the cause of responsible government. This litigation
has harassed Federal employees in carrying out their duties. As a result,
the public has not been well served. The Supreme Court justified its ac-
tion in the hope and expectation that the litigation would deter Federal
employees from the abuse of their authority, but what has been deterred in
most cases has been the forthright and proper exercise of Federal func-
tions.
A second justification of the Court's rulings was that there should
be a remedy for a violation of a constitutional guarantee, and damages is
the traditional remedy. We agree with this reasoning. A third justifica-
tion also was given that the Congress has provided, in 42 U.S.C. 1983,
which originated with the Civil Rights Act of 1971, that State officials
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acting under color of law shall be liable in damages for depriving persons
of constitutional rights, and that to "create a system in which the Bill of
Rights monitors more closely the conduct of state officials than it does
that of federal officials is to stand the constitutional design on its
head." Butz v. Economou, 438 U.S. 478, 504 (1978). This justification
also have validity, but we understand that many States provide liability
insurance for their employees in their cases, thus providing them greater
individual protection than now prevails for Federal employees under the
Bivens rule.
H.R. 595 would allow the injured party to recover compensation from
the United States, thus satisfying a constitutional need and providing com-
parability with state action. It would immunize the Federal employee from
personal liability in damages, which is similar to providing 100 percent
liability insurance. It removes the chilling effect which the Bivens
policy has on prompt and effective decision making.
Although H.R. 595 does not allow for punitive damages, it does pro-
vide, on page 11, in the new section 2693 of the Unites States Code, that
"If the conduct giving rise to the tort claim was undertaken with the mali-
cious intention to cause a deprivation of constitutional rights or with
reckless disregard for the plaintiff's constitutional rights, the court
shall award, in addition to actual damage, damages of not more than
$100,000."
This is a new provision which was added by the subcommittee when it
approved H.R. 7034 last August, and we enthusiastic. fly endorse it. The
lawsuit is not simply a device to recompense the injured party for the
damages which he or she may have suffered at the hands of Federal employees
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who have overstepped the bounds of their authority in certain cases. There
is more involved than simple compensation. At issue are alleged depriva-
tions of basic and precious individual rights guaranteed by our constitu-
tion, particularly in the Bill of Rights. The litigation becomes an oppor-
tunity for the public through the voice of the court to make a statement
that the abuse of authority was so unjustified as to threaten the basic
principles of a responsive and responsible government in a democratic
society. The award of additional, damages would make such a statement,
whether the amount of damages is a nominal dollar or ten dollars, or is up
to the maximum $100,000 allowable in the statute. We also assume that the
Attorney General in settling a suit may allow additional damages, which
would constitute a statement on his or her pat that the action of the
Federal employee or employees transcended the bound of acceptability and
excuse.
The proposed new section 2693 of the Code also would provide that
the United States may assert as a defense to a constitutional tort claim
"the absolute or qualified immunity of the employee of the government whose
act or omission gave rise to the claim,". This provision contains a logi-
cal inconsistency where the immunity is based upon the need to protect the
employee from the possibility of personal liability. Compare Nixon v.
Fitzgerald, U.S. (June 24, 1982). It makes no sense to prohibit
a suit against the United States for the recovery of actual and additional
damages because of the possible exposure of individual employees to liabi-
lity for damages when the law eliminate that exposure. Accordingly, we
recommend that H.R. 595 be amended by eliminating the reference to a de-
fense based on the absolute or qualified immunity of the employee or by
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inserting "except where the immunity is based on the need to eliminate ex-
posure to personal liability for damages," on page 11, line 9 after
"claim,".
We have some misgivings about the further provision in the proposed
section 2693 that the United States may assert as a defense the reasonable
good faith belief of the employee in the lawfulness of his or her conduct,
because we would think that a citizen should be compensated for actual
damages for deprivation of a constitutional right by the Government even if
the individual employee or employees responsible for the deprivation be-
lieved they were acting in good faith. However, we recognize that the
presence or absence of good faith may itself be an el-ment in whether or
not a constitutional tort has been committed. The resolution of the finer
points of the legal principles such as this will of necessity have to be
left for resolution by the courts through the judicial process.
On the subject of disciplinary proceedings H.R. 595 provides merely
that upon the granting of a settlement or a judgment for a monetary award
the Attorney General would refer the matter to the head of the agency for
which the employee or employees worked at the time of the incident for ap-
propriate investigative and disciplinary action. We believe that this is
an inadequate provision because in many cases the responsibility for
serious misconduct must be shared by the agency head. If the agency head
were conducting the investigation, it would be difficult if not impossible
for the employee to use as an excuse or justification of his or her conduct
that he or she was following agency policy or the instructions of super-
visors. Also, there would be an incentive for the agency head to use the
employee as a scapegoat. The Australian movie "Breaker Morant" well illus-
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trates this problem. Thus, we recommend that provision be made for the
conduct of a disciplinary proceeding by someone other than the agency head.
It would appear that the Merit Systems Protection Board might be the best
agency to serve this function. We note that under the Civil Service Reform
Act which established the Board there is provision for the Board, with the
assistance of the Special Counsel, to investigate abuse of authority and
impose disciplinary measures. (5 U.S.C. 1207). Accordingly, we recommend
that H.R. 595 be amended by inserting "and to the Merit Systems Protection
Board," on page 18, line 9, after "based,".
Of course, reference to the Board would be futile if the Board is
not adequately staffed and funded to handle this special assignment in a
timely manner along with its regular substantial workload.
Mr. Chairman, we recognize that earlier bills on this subject have
been held up in the past because of an inability to resolve the apparent
dilemma that on the one hand, most people agree that the Federal employee
who has acted in good faith in the exercise of his or her responsibilities
should not be exposed to liability for damages; whereas on the other hand,
many believe that an employee who has acted in bad faith in committing a
deliberate or gross abuse of authority should be confronted by his accusers
and suffer the consequences of his or her actions.
We believe that these conflicting viewpoints can be reconciled
through a proper understanding of the various private and public interests
involved. We recognize that the victim of the alleged wrongdoing, and
those supporters who desire that justice be done, seek five objectives-
exposure of the wrong and the wrongdoer, confrontation of the wrongdoer by
the victim, compensation of the victim for actual damages suffered, affir-
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mation that the wrongful act is unacceptable in a democratic society, and
retribution for the harm done. We believe that the first four objectives
are legitimate and will be accomplished through H.R. 595 with the two
amendments'we are suggesting. Thus, the lawsuit against the United States
will expose the alleged wrongdoers to public scrutiny and will afford the
victim the opportunity to confront the accused even though the individual
Federal employees who have committed or caused the deprivation of constitu-
tional rights are not named as individual defendants and are not individu-
ally liable. The right of recovery against the United States will provide
compensation. In addition to actual or liquidated damages, the award of
additional damages by the court will serve as an affirmation that the abuse
of authority was reprehensible and should not be condoned or repeated in a
democratic society.
The desire for retribution, however, must give way to the greater
public interest in effective government. The 'exposure of the individual
employee to unlimited liability for damages is the defect in the Bivens
doctrine which impairs the effective functioning of government. It in-
hibits necessary action and compromises sound decision-making. It is dif-
ficult to hire and retain competent, responsible employees when they might
be exposing themselves and their families to bankruptcy. Employees of
private organizations and most state governments are covered by insurance.
The problem of correcting improper practices and disciplining miscreant
employees is a management problem in which the public as a whole has a
vital interest; it is not just a concern of the victims of the wrongdoing
and should not be controlled by them. The nature of the penalty imposed
should be dictated by management considerations, not the extent of the
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damages caused. For example, the disciplinary actions which the Merit Sys-
tems Protection Board may impose for abuses of authority consist of "re-
moval, reduction in grade, debarment from Federal employment for a period
not to exceed five years, suspension, reprimand, or an assessment of a
civil penalty not to exceed $1,000." (5 U.S.C. 1207(b)). We believe these
are the appropriate sanctions to be considered.
Mr. Chairman, that completes my statement. I want to commend you
and the subcommittee for moving on this important piece of legislation, and
to urge its prompt enactment. I will be glad to answer any questions.
Thank you.
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