FEDERAL EMPLOYEES LIABILITY REFORM AND TORT COMPENSATION ACT OF 1988

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R000200030001-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 23, 2016
• Document Release Date: August 16, 2012
• Sequence Number: 1
• Publication Date: October 31, 1988
• Content Type: MEMO

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31 October 1988
CCA 3627-88
MEMORANDUM FOR: Chief, Administrative Law Division/OGC
Chief, Litigation Eivision/OGC
FROM:
Legislation Division
Office of Congressional Affairs
SUBJECT: Federal Employees Liability Reform and Tort
Compensation Act of 18
1. Attached, for your information, is a copy of the
above-captioned till, which was recently passed by Congress.
It provides generally for the Federal Government to be the
exclusive means for compensation- of persons injured by tortious
acts committed by Federal employees.
2 Shnn16 ou have any questions, please telephone me on
Attachment
OCA/LEC
Distribution:
Orig - addressees
1 - D/OCA (w/o att.)
1 - DDL/OCA (w/o att.
1 - SA/OCA (attn:
1 - RMH Cbrono o att.
1 - OCA Records (Watt.)
1 - OCA/LEG Subj. File (w/att.)
OCARead
31 Oct 88
(w/o att.)
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STAT
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LEOI-SLATE Report for the 100th Condress Mon, October 7f,1, 1988 2.01pm (EDT)
Report for H.R.4L12 Federal Employees Liability Reform and Tort Compensation
Act of 198C
As finally approved by the House and Senate (Enrolled), A:T THE SECOND
SSSION
Complete Text of this version
H.R.4L,12
One Hundredth Congress of the United States. of America
AT THE SECOND SESSION
Pedun and held at the City of Washington On Monday,
the twenty-fifth day of January one thousand nine hundred and eiohtv-eicht
An Act
To amend title 28, United States Code, to provide for an exclusive remedy
against the Unied States for suits based upon certain negligent or wrongful
acts or emicir-in'=, of United States employees committed within the scope of
their employment, and Tor other purposes.
Se it enacted by the Senate and HOUSE of Representatives of the United
,States of America in Congress assembled,
SECTION 1. SHORT TITLE,
This Act may be cited as the 'Federal Employees Liability Reform and Tort
Compensation Act of 1988".
SEC. 2. FINDINGS AND PURPOSES.
(a) Findincs.--The Congress finds and declares the following:
(1) For more than 40 years the Federal Tort Claims Act has been the
ledal mechanism for compensating persons injured by negligent or wrongful
acts of Federal employees committed within the scope of their employment.
(2) The United States, throuch the Federal Tort Claims Act, is
responsible to injured persons -for the common law torts of its employees
in the same manner in which the common law historically has recognized the
responsibility of an employer for torts committed by its employees within
the scope of their employment.
(7) Because- Federal employees for many years have been protected from
personal common law tort liability by a broad based immunity, the Federal
Tort Claims Act has served as the sole means for compensating persons
injured by the tortious conduct of Federal employees.
(4) Recent judicial decisions, one particularly the decision of the
United States Supreme Court in West-Fall v. Erwin, have seriously eroded
the common law tort immunity previously available to Federal employees.
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LECI-ELATE Report
Page 2 October 31, 199E
lI ability has created an immediate crisis involving the prospect of
persona:1 liability and the threat of protracted peesenal tort litigation
-fOr? the entire Federal worieforce.
proapeet of such liability will seriously undermine the morale
and wall being of Federal employees, impede the ability of agenciee to
Larry net their missions, and diminish thc vitality of the Federal Tort
Cla.i.ms net as the proper remedy for Federal employee torts.
(7) in its opinion in Westfall v. Erwin, the. Supreme Court indieated
that the Congress is in the best position to determine the extent to which
Fede:al Employees should be pereonally liable for common law torte, and
that legislative consideration of this matter would be. ueeful.
(b) Purpuee.--it is the purpose of this Act to protect Federal empleyees
from personal liability for. cemmon law torts committed within the scoLe of
their employment, while providing persons injured by the COMM:Dr; laJe torte of
Fedeeal. employeee with an appropriate remedy against the United States.
SEC. 3. JUDICIAL AND LEGISLATIVE DR-NCH EMPLOYEES,
Sectjon 2n7i title 28, United ,States Code, is amended in the first full
paeagraoh by inserting after "ecoutive departments," the following "the
judiciel and )egielative branches,".
EEC, 4, PETENTION OF DEFENSES.
Cection 267%! of title 2E, United States Code, is amended by addine at -!'he
End o4 the section the following new paragraph::
th reapect to any claim under this. chapter, the United States shall be
entitled to assert any defense based upon judicial or legislative immunity
which otherwise would have
whose act or omeseion gave
which the United States is
been available to the employee of the United States
rise to the claim, aa well as ary other defenses to
untitled.".
SEC. 5. E_CLUSIVENESS OF REMEDY.
Section 267(b) of title 2E, United Statee Code, is amended to read as
foIlews
"(b)(1) The remedy against the United States provided by sections 13:46(b)
and 2672 of this title for injury or loss of property, or personal inury or
death arisihd or rsSultint71 from the nedligent or wrongful act or omission of
ary emplovee of the Government while acting within the scope of his office or
employment is exclueive of any other civil action or proceeding -for money
damades by reason of the same subject matter adainst the employee whose act or-
-
omission gave rise to the claim or against the estate of such employee. Any
other civil action or proceeding for money damages arising out of or relating
to the same subject matter against the employee or the employee's estate is
precluded without regard to when the act or omission occurred.
"(2) Paragraph (1) does not extend or apply to a civil ahtiom against an
employee of the Government--
"(A) which is brought
States, or
"(E) which is brought
under which such action
for a violation of the Constitution of the United
for a violation of a statute of the United States
against an individual is otherwise authoriced.".
EEC. 6. REPRESENTATION AND REMOVAL.
Section 2679(d) of title 28, United Stated. Code, is amended to read as
follows
"(d)(1) Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at the time
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Fage October? 7M, 193P
C ommenced UpLJH such claim in a United States district court shall be deemed an
action against the Uoited States under the provisions. of this title. ane all
refereneeec thereto, and the United States shall be substituted as the party
defendant.
"(2) Upon certification by the Attorney General that the defendaot employee
wes acting within the scope of his office or employment at the time of. the
incideot cut c-f which the claim arose, Ery civil aetioo or proceeding
commenced upon suck Claim in a State court shall bE removed without bond at
any time before trial by the Attorney General to the district court of the
United Stated for the district and division emboacinc the place in which the
action or proeueding is poach no. Such action or proceeding shall be deemed to
be an action or proceedino bt ought. against the United States under the
provisions ef this.. title and all re+erences thereto, and the Unitec Statep
shall be substituted as the party defendant. This certificatioo of the
Attorney General shall conclue,ively establish seppe ofTice or emplovriIt
for purposes of removal.
"(21) In the eveot that the Attorney General has re .fused to certify a: con- of
office or employment undee this section, the emp:oyee may at any time before
trial petitioo the court to find and certi4'y that the employee NEE acting
within the scope of his offihe or employment, Upon such certification by the.
court, such action or proceedino ehall be deemed to be or action or preceeding
brought against. the United States under the provisions of this title and
referenees thereto, and the United States shall be substituted as the party
defendant. A copy of the petition shall be served upon the United States in
accordance with the provisions 0+ Rule 4(d)(Ir of the Federal Rules of Civil
rroceduoe. In the event the petition is filed in a civil action or proceeding
pendine in a State court, the action or proceeding may be removed without bond
by the Attorney General to the district court the United .States -For the
disteict and division embracinc the place in which it is pending. If, in
considering the oetition, the dietriot court determines that the employee WEE
not aetino within the scope of his office or employmeot, the action Dr
proceeding sholl be remanded to the. State court.
"(4 Upon certification, any action or proceeding subject to paragraph (1),
(2), or (7) shall proceed in the same manner as any action against the United
States filed pursuant to section :2-'c -b) of this title and shall be subject to
the limitations and exceptions applicable to those actions.
"(5) Whenever an action or proceeding in which the United States is
Eubstituted as the party defendant under this subseetion is die.mie.eerl for
failure first to present a claim pursuant to section 2L75(a) of this title,
such a claim shall be dt.,.-Lj to be timely presented under section 2401(b) of
this title if--
"(A) the claim would have Leo-fl timely had it been filed on the date the
undeelying civil action was commenced, and
'(2) the claim is presented to the appropriate Federal agency within 6,0
day,: after die.mie,sal of the civil action.",
SEE, SVFRADILITY.
If any provision of this Act or the amendments made by this Act or the
application of the provision to any person or circumstance is held invalid,
the remainder of this Act and such amendments and the application of the-
provision to any other person or circumstance shall not be affected by that
invalidation.:
SEC. 3. EFFECTIVE DATE.
(a) General Rhle.--Thie, Act and the amendments made by this Act shall take
effect on the date of the enactment of this Act.
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Pace 4 Detober 7:*,1, 11E3
(LA Applicability to Proceedings.--The amendments made by this Aci shall
apply to all claims, civil actions, and pnoceedings pending on, or filed on or
after, the date cf the enactment of this (r t.
Pec'jric-J State Proceedinge.--Nith respect to any civil action or
proceedine per-dine in a State couet to which the amendments made by this Act
anply, and as to wnich the period for removal under section 267c;(d) of title
28, United States Code (Ls amended by section 6 of this Act), has r-,:pired, the
Attorney Seneral sha.13 have 60 days after the date C.-.)-- the enactment of this.
Act durind which to seek removal under such section 2679(d).
(d) Claims Aceruind Def ore Enaetmant,--With respect to any Ci'--i l aetien or
proceeding to which the amendments made by this Act apply in which the claim
accrued before the date of the enactment of this Act, the period during which
the claim shall bc deemed to be timely presented under section 267(d)(5) of
tite 2D, United States Code (as amended by section 6 of this Act) shall bc
that pered within which the claim could have been timely fl ed under.
applicable State law, but in no event shall such period exceed two years from
the date ef the enactment ef this Act.
SEC. C. TENNESSEE VALLEY AUTHORlTY.
E.:U.E.VEFIESE. of Remedy.--(1) An action against the Tennessee Valley
Authority' foe injury or loss of property, er personal injury or death arisind
or resWting from the neglicent or wrenpful act or omission of any employee Di
the Tennessee Valley Authority while acting within the scope uf this office OF
employment is exlusive uf any other civil action or prozeudirg by reason of
the same snbiect matter against the employee or his estate whose act. or
CiMiT'2,Si0:-. gave !--JS::E to the claim. Any other civil action or prOLEEdiflt74 arising
cut of or relating to the same subject matter against the employee or his
estate is peecluded without regard to when the act on omission occurred
(2) Faraeraph (1) does not c:tend or apply to a cognisable action against an
sip: over of the. 7-,71MESSEE Valle'>?. Authority for money damade -FE,r ..7-i VfOlLtiOci 04-
the Cr_isttution of the Untiee 51',tates.
(LO Repeesentation and Removal.--(1) Upon certification by the. TE2r1F.EE.,SPE
Valley Authority that the defendant employee was acting within the scene of
his 041-110E or Employment at the time of the incident out of which the Ci C.
arose, any civil action or proceeding heretofore or hereafter ecnmenced upcn
such eleeim in a United Stnats district eourt shall bc deemed an action against
the Tennessee Valley Authority pursuant to 16 U.S.C. S:21C(b) and the Tennessee
Valley Authonity shall ba substituted as the party defendant.
(2:, Upon certification by the. Tennessee Valley Authority that the defendant
employee was aetime within the scope of his office or employment at the time
of the inciSeut out of which the claim arose, any civil action or proceeding
eommenced upon such claim an a State court shall be removed vA.thout bond at
any tjme before trial by the Tennessee Valley Authority to the district court
of the United States for the district and division embracing the place. wherein
it is pending. Such action shall be deemed an action brought against the
Tennessee Valley Authority under the provisions of this title and all
refErenees thereto, and the Tennessee 'Valley Authority shall ba sfkbstituted as
the party defendant. This certification of the Tennessee Valley Authority
snail conclusively establish scope of office or employment -For purposes of
r E iti 0 'Va. 1 .
(7:) Ii- % the event that the Tennessee Valley Authority 1-1,--ts refused te certify
scope of office or employment under this section, the employee mey at any time
before trial petition the court to find and certify that the employee was
acting within the scope of his office or employment. Upon such certification
, by the court, such action shall be deemed an action brought against the
'..... Tennessee Valley-Authority, and the Tennessee Valley Authority shall be
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r&Qe 5 October 71, 19Bs
substituted as the party defendant. A copy of the petition shall hE served
upen the Tennessee Valley Authority im accordance with the Federal Ruies
Civil Prodedure. In the event the petition is filed in a civil action or
proceeding pond no in a State court, the action or proceeding may bE FE'LIWUCT
without bond by the Tennessee Valley Authority to the district court of thf-
United States for the district and division embracihr.g the place in which it is
pendi.ng. lf, in considering the petition, the district court determines that
the employee was not acting within the scope his office or emplovipent, the
action cr- proceeding shall be remanded to the State court.
(4) Upon certification, any actions subiect to paragraph Ci)., (2), or
shalI proceed in the same manner as any action adainst the Tennessee Valley
Authoriiy arc] shall be subject. to the limitations End eceptions app=icatie to
those. actions-
(c) Retention of Defenses.--With respect to any claim to which this seEtion
appliES, the Tennessee Valley Authority shall be entitled to assert afl,,'
defense which otherwise would have been available to the empleyee based upon
judiciaj or legislative immunity, which otherwise. would have been available to
the employee of the Tennessee Valley Authority whose act or- omission gave rise
to the claim as well as any other defenses to which the Tennessee Valley
Authority is entitled.
Speafter of the House of Representatives.
Vice President of the United States ane
President of the Senate.
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