LETTER TO RUSSELL J. BREMMER FROM JOHN R. BOLTON

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00234R000100140006-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 22, 2016
• Document Release Date: October 24, 2012
• Sequence Number: 6
• Publication Date: May 9, 1988
• Content Type: LETTER

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W U.S. De artme
p i Justice W-0/irew-
Civil Division
Washington, D.C. 20530
MAY 9 t968
Mr. Russell J. Bremmer
General Counsel
Central Intelligence Agency
Washington, D.C. 20505
Earlier this year, the Supreme Court issued its decision
in Westfall v. Erwin,. 56 U.S.L.W. 4087 (U.S. Jan. 13, 1988)
(No. 86-714), which dramatically changed the law concerning the
extent to which federal employees may be personally liable for
common law torts arising from the performance of their official
duties. For the past three decades, since the Court's ruling in
Barr v. Matteo, 360 U.S. 564 (1959), federal employees largely
had been immune from such liability.
Unfortunately, the Supreme Court's opinion in Westfall has
fundamentally changed the law as to common law tort liability.
Westfall requires that in order for a federal employee acting
within the scope of his employment to be immune from common law
liability, the alleged tortious act must have involved the
exercise of governmental discretion.
The Court offered little guidance as to what constitutes
such governmental discretion, other than to note that "minimal
discretion" is insufficient. It seems likely, however, that few
federal employees can be assured categorically that their
official conduct will not expose them to personal liability. As
a result, we now are faced with a potentially serious crisis in
individual capacity lawsuits against federal employees.'
The Court apparently appreciated the difficulties its
opinion would generate for federal rank-and-file employees, in
that it invited Congress to consider the issue and provide an
appropriate legislative solution. Enclosed for your information
is H.R. 4358, the "Federal Employees Liability Reform and Tort
Compensation Act of 1988" which has been introduced in the House
of Representatives by Representatives Frank, Fish, Shaw and Wolf.
I believe it is a fair and equitable response both to the Court's
invitation for congressional review and to the underlying
question of who should bear responsibility for common law torts
committed by federal employees within the scope of their
employment.
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In brief, H.R. 4358 would make a suit against the United
States under the Federal Tort Claims Act (FTCA) the exclusive
remedy for persons injured by official conduct that would
otherwise constitute a common law tort. This would reimpose what
effectively had been the state of the law prior to Westfall as to
common law tort allegations. The Act simply would ensure that
persons injured by governmental negligence would receive
compensation from the Judgment Fund, and not from the personal
assets of federal employees.
This is as it should be. First, it reflects the fact that
the alleged tortious conduct ultimately is official conduct. As
such, if anyone is to be liable, it should be the federal
government -- not the individual employee tortfeasor. Equally
important is the fact that only the rare civil servant will have
the financial wherewithal to satisfy a substantial civil judgment
or settlement. And, as you know, exclusive remedy provisions
protecting federal drivers (28 U.S.C. ? 2679(b)), and physicians
(10 U.S.C. ? 1089; 22 U.S.C. ? 2702; 38 U.S.C. ? 4116; 42 U.S.C.
?? 233, 2458a), have been in place and operating smoothly and
without controversy for years. H.R. 4358 would extend the
protection afforded by these provisions to all federal employees.
Although an explanation of H.R. 4358 is enclosed, several
points require emphasis. The exclusive remedy provided by H.R.
4358 would apply to all traditional common law torts, regardless
that they may have been codified in state statutes. In other
words, the bill covers all causes of action that permit recovery
for acts of negligence, whether they are predicated upon case law
or state statutes. An example of the latter is a cause of action
for wrongful death, which predominantly is established by state
statute.
H.R. 4358 does not, however, apply to causes of action which
are based upon alleged violations of constitutional rights, the
so-called Bivens torts. We continue to believe that Bivens
cases should be pursued against the United States under the FTCA,
and not against the involved employees. Nevertheless, when this
proposal has been pursued in the past, it has met with
substantial resistance. While we continue to believe that Bivens
remedial legislation is essential, given the controversial nature
of such legislation, we specifically have excluded constitutional
torts from the coverage of H.R. 4358.
H.R. 4358 will have the highest priority in the remaining
months of the Administration. It is a "good government" bill
that carefully balances the need to compensate those injured by
negligent conduct with the need to protect rank-and-file federal
employees so as to allow them to go about their business
concerned only with the public's best interest, and not
preoccupied with fear for their own financial well-being.
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On April 14, a hearing was held before the House
Subcommittee on Administrative Law and Governmental Relations.
The hearing went very well, and I am somewhat optimistic about
passage.
Because Members of Congress are likely to request your
agency's views on the merits for this legislation, and the impact
of Westfall upon your employees, you may wish to alert your
legislative office and other appropriate officials within your
agency to the existence of H.R. 4358, and the urgent need for its
enactment. We certainly encourage you to take any opportunity to
explain the advantages of such legislation for rank-and-file
federal employees, including those of your agency. I am sure
that your-views will carry great weight.
Please feel free to contact me if you have any questions or
comments concerning the proposal.
Sincerely yours,
hn R. Bolton
Assistant Attorney General
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