LETTER TO CHARLES E. GRASSLEY FROM JERRY J. BERMAN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300410008-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 8
• Publication Date: June 3, 1982
• Content Type: LETTER

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3 June 1982
Senator Charles E. Grassley
Chairman
Subcommittee on Agency Administration
Senate Judiciary Committee
600 Pennsylvania Ave.. SE
Suite 301
Washington, DC 20003
[phone]
John Shattuck
O ECron
Jerry J. Berman
David E. Landau
Wade J. Henderson
LEGISLATIVE C OU-JSEL
Laura Murphy
LEGISLATIVE
1EPMSENTATV
Hilda Thomson
ACMMNSTMTIVE O ECTOA
National Headquarters
132 West 43 Street
New York, NY 10036
[phone]
Norman Dorsen
Ira Glasser
?aOJTIVE or.C R
Dear Senator Grassley:
We understand that the Subcommittee on Agency Administration
will soon consider S. 1775 which would amend the Federal Tort
Claims Act (28 U.S.C. ?1346 (b), ??2671 et. seq.) to make the
federal government exclusively liable for the commission of
constitutional. torts committed by federal officials acting
within the scope of their "office or employment." When we
testified in opposition to S. 1775 on November 13, 1981,,you
graciously extended us an offer to sit down with you or your
staff as you proceeded to work on the legislation. We accept
the offer and in anticipation of meeting with you take this
opportunity to set forth our specific concerns regarding S. 1775_
Background
As you know legislation similar to S. 1775 was proposed by
the Carter Administration (S. 2117) in the 95th Congress
and also in the 96th Congress (S. 695 introduced by Senator
Kennedy). Although we supported the goal of making the gov-
ernment liable for constitutional torts committed by federal
officials, we vigorously opposed the legislation because of
its failure to provide adequate compensation to victims of
constitutional torts and a disciplinary mechanism to assure
individual accountability and deterrence of constitutional
wrongs as a substitute for individual liability. Despite
our opposition, we, together with other public interest org-
anizations such as Public Citizen, Common Cause, and the
National Legal Aid and Defender Association, worked long
and hard with senate staff and Justice Department officials
to develop legislation that would accomplish the goals of
the bill: (1) to provide adequate compensation to victims;
(2) free individual officials from the burden of protracted
litigation and the government from the cost of defending
such suits, often with private counsel; and (3) main-
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tain individual accountability through a substitute discip-
linary mechanism. As S. 3314, a substitute bill offered
by Senator Metzenbaum in the 95th Congress and a comparison
between S. 2117 and S. 695 as introduced bysSenator
tor Kennedy
in the 96th Congress make clear, the parties
came close to achieving a balanced bill that would
command wide support. Although there were still differences
to be worked out when action on the bill came
to a halt in the 96th Congress, there was general agreement
over the following elements of the legislation: (1) the gov-
ernment would be exclusively liable for constitutional torts
committed by federal officials acting within the scope of
office or employment; (2) the government would waive the
"good faith" defense of its employees asserted in individual
damage actions; (3) attorneys fees would be recoverable by
successful plaintiffs; (4) class actions could be maintained;
(5) liquidated damages were provided for intangible harm-
but with the expectation that the bill would be amended to
increase the amounts over those provided in the legislation
as introduced ($1,000 or $100 per day up to $15,000); (6) a
disciplinary mechanism was in the process of being worked
out that would allow the victim of a constitutional tort to
participate in a proceeding to determine whether an employee's
conduct warranted disciplinary action.
A Significant Retreat _
We testified in total opposition to S. 1775 because it marks
a significant retreat from previous proposals. While it
makes the government exclusively liable for constitutional
torts committed by federal officials acting within the scope
of office or employment, S. 1775: -
(1) allows. the government to raise the "good faith"
defense of its employees, with the result that
the government will not pay damages in many cases
where constitutional rights have been. violated;
(2) eliminates attorneys fees, thus removing the
means by which citizens can pursue redress for
intangible harm to constitutional rights since
litigation;
damage awards will not pay the cost of (3) eliminates class action suits, another incentive
for seeking redress for constitutional violations;
(4) provides liquidated damages based on a formula
worked out in 1968, without accounting for in-
flation;
(5) eliminates the disciplinary procedure, thus ig-
noring the need for an alternative deterrence
and accountability mechanism to replace the
~~?-eat rf ;n9;v;dual liability and punitive
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These retreats together undermine the declared objectives of
the bill. The promise of a "deep pocket" defendant for vic-
tims of constitutional torts is rendered illusory: `The sub-
stitute remedy will not act as a deterrent to gov-
ernmental misconduct. Finally, the legislation will not free
individual officials from the burden of participating in pro-
tracted litigation or end governmental involvement in extensive,
complex, and costly litigation. The reasons for this and the
changes that must be made in the bill to achieve the declared
purposes of the legislation are set forth in more detail below.
The Goal of Adequate Compensation
The Supreme Court in Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics 1/ held that individual
government officials may be personally liable for violating
the constitutional rights of citizens. The court established
the Bivens remedy against individual officials because the
plaint Thad no remedy against either the government or the
official under the FTCA or other statutory or case law. Under
Bivens, however, the plaintiff is often denied adequate recovery
because the individual employee can assert a "good faith" de-
fense. Even if he or she cannot, the employee may not have the
funds to make the plaintiff whole.
However, simply making the government liable for constitutional
torts under the Federal Tort Claims Act does not advance the
cause of securing adequate compensation for victims of constit-
utional torts. First of all, in a growing number of recent
cases, the courts have found the government subject to suit
under the Federal Tort Claims Act for constitutional torts or
common law torts in the nature of constitutional wrongs. See,
e.g. Founding.Church of Scientology v. Director, FBI, 459 F.
Supp. 748 (D.D.C. 1978); Norton V. Turner, 581 F. 2d 390 (4th
Cir. 1978); S.W.P. v. Levi, 47 L.W. 2427 (1/9/79); Birnbaum
v. United States, 436 F. 2d 967 (2d. Cir. 1978); Avery v. U.S.,
434 F. Supp. 937 (D. Conn. 1977); Cruickshank v. U.S., 431 F.
Supp. 1355 (D. Haw. 1977). Recently, the Supreme Court has
held that a victim of a constitutional tort--therein a violat-
ion of the plaintiff decedent's rights under the Eighth Amend-,
ment--could proceed against the offending individual federal
official in a Bivens action as well as against the United
States under the present FTCA. Carlson v. Green, 446 U.S. 14
(1980).
While the provision of liquidated damages under S. 1775 ("1,000
or, in the case of a continuing tort, $100 a day for each day
of violation up to a mazimum of $15,000") is a step in the right
direction, standing alone, it does little to advance the cause
of plaintiff recovery beyond what is available under current
law. The Second Circuit, in Birnbaum,-supra, recently upheld
1 / 403 U.S. 388 (1971)
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a damage award of $1,000 per plaintiff for surreptitious mail
opening by agents of the Central Intelligence Agency. See
also, Black v Sheraton Corp. of America, 564 F. 2d 531 (D.C.
Cir. 1977). The low arbitrary limits on liquidated damages
may act as a limitation of the courts' discretion to award
larger amounts in future cases. At minimum, the liquidated
damage amount, based on section 2520 of Title 18, the 1968
Wiretap Statute, should be adjusted upwards for inflation.
To insure adequate compensation for the victims of constit-
utional torts, it is essential for the government to waive
the "good faith" defense. S. 1775, contrary to previous
proposals, including the counterpart bill in the House,
H.R. 24, does not waive this defense in a suit against the
government. (see Sec. 3) This is contrary to the rationale
for the good faith defense and will defeat recovery from
the government in cases where constitutional rights have been
violated. As the Supreme Court has recently articulated
in a case denying the right ofa municipality to raise the
good faith defense of its employees in a ?1983 suit under
the Civil Rights Act, the good faith defense is permitted
to an individual official because he or she is under an
obligation to exercise discretion and it would be unjust
to hold an individual liable in,the absence of bad faith,
particularly because of the public interest in encouraging
decisive governmental action. Owen v. City of Independence,
445 U.S. 622 (1980) If the individual employee is not liable,
as would be the case if S. 1775 were enacted, the rationale
does not apply nor should it. The issue, when the govern-
ment is the defendant, is whether or not government policy
or actions have led to a violation of.a citizen's constitutional
rights. For example, if the government has a policy on nat-
ional security searches which turns out to violate the con-
stitution, an individual employee may escape liability for
following that policy. But the government should not be able
to assert that the employee was following a government policy
escape
in good faith
search has been conducted. and also
ility. The s
The victim should be made whole.
It is also essential for the government to pay reasonable at-
torneys' fees in cases where citizens establish a violation
of their constitutional rights. Although attorneys'fees are
not available in FTCA cases, constitutional torts aredif-
ferent. The litigation is complex and damage awards fd
intangible harm small, particularly in the absence of punitive
damages. Without the possibility of attorneys fees, citizens
will be unlikely or unable to pursue redress. It should be
noted that attorneys'fees are recoverable in ?1983 actions and
that previous proposals included such awards.
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Finall we believe it is necessary either to define the term
constitutional tort in the bill or remove the distinctions be
tween intentional and constitutional torts in the. leg islaa tins.
to insure adequate com ensation for constitutional who
Under the proposed scheme, benefits accrue to a plainti
asserts a "tort claim arising under the Constitution of the
United States, to the extent that liability for such claims
is recognized or provided by appliable federal law" which do
not apply in cases of common law or intentional torts. (Sec.
3(b)(1)) For example, under S. 1775, the plaintiff is en-
titled to liquidated damages. Under the House counterpart,
H.R.24, the plaintiff is also entitled to attorneys' fees and
the government waives the "good faith" defense. However, gov-
ernment not clear that constitutional torts is intended by
ernment to be an expanding doctrine. To date, the Supreme
Court has only recognized three constitutional torts, based
on the theory that no alternative remedy was available under
federal law. Bivens v. Six Unknown Agents of the Bureau of
Narcotics, 403 U.S. 288 (1971)(unlawful entry and search of
a home in violation of the Fourth Amendment); Davis v. Passman,
442 U.S. 228 (1979) (sex discrimination) ; Carlson v. Green,446
U.S. 14 (1980) (Eighth Amendment). Once an alternative remedy
is available under the FTCA, it is not clear that common law
intentional torts which sound in constitutional tort (e.g.
.privacy, assault, etc) and for which liability has been found
in some cases under the FTCA will be treated as constitutional
torts. For example, the government, in previous years has
indicated that it would press for a limitation on constitutional
courts that
tort development by arguing to the
law
were instead common
An award of such fees and costs in constit-
utional tort litigation would be governed
by new section 2681(b), and would be separate
from any damage award. Attorney's fees in
non-constitutional tort cases would be payable
by the client out of any judgment rendered in
his favor subject to the restrctions of section
2678. As a result of this difference, skillful
counsel may plead the existence of a constitut-
ional tort when their case in reality sounds in a
traditional, common law cause of action. It is
intended-that the courts be alert to such a pos-
sibility and rule on the attorney fees issue based
upon the true gravamen of the tort as alleged and
rr oven. Section-by-section n( n79jsis of H.R. 2659,
p. 15 (emphasis supplied)
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-in'"3irnbam v. united 'States, '43'6 7. '23 1967 (2nd Cir. 1978) ,
the government was held liable for a common law invasion of
privacy for opening the mail of citizens under the FICA. Will
the government be able to argue that a similar case is an inten-
tional or common law tort and not a constitutional tort after
enactment of S. 1775? Will law enforcement agency torts, sim-
ilar to those brought under the FTCA in 1974, be considered in-
tentional torts by the government in future litigation even
though their commission also violates constitutional rights?
We believe the Congress should resove this issue in favor of
an expansive development of constitutional tort doctrine.both
to insure adequate compensation for citizens and to avoid pro-
tracted litigation over this jurisdictional issue. The Sub-
committee can resolve this issue in favor of insuring adequate
compensation for victims of constitutional torts by defining
the scope of constitutional tort doctrine or by removing the
remedial differences between'torts which may sound in both
common law and constitutional tort.
Admittedly, there have not been many-cases of money judgments
against officials for violating constitutional rights under
Bivens, although the administration understates the number by
failing to count settlements out of court. 1/ However, un-
less the changes outlined above are made in the bill, plain-
tiffs whose rights have been violated will be in no better
position to recover damages, particularly if the government
may assert the good faith defense, the principal barrier to
recovery under current law. 2/ In many cases plaintiffs
will be worse off in not being able to proceed against both
the government and the employee. See Carlson, supra. This
is particularly the case when the goal of accountability and
deterrence is taken into account.
l_/ The Subcommittee should ask the Administration for the
number and amount of settlements for constitutional tort
violations both under FTCA and against individual officials
and former officials.
2/ After Owen v. City of Independence,-445 U.S. 622 (1980), it
is not clear the Court would sustain this substitute remedial
scheme: "How'uniquely amiss'it would be,therefore, if the
governemnt itself-'the social organ to which all in our society
look for the promotion of liberty, justice, fair and equal treat-
ment and the setting of worthy norms and goals for social con-
duct,'were permitted to disavow liability for the injury it has
begotten. (Citation Omitted)A damages remedy against the offend-
ing party is a vital component of any scheme for vindicating
cherished constitutional guarantees, and the importance of as-
suring its efficacy is only accentuated when the wrongdoer is
the insitutution that has been established to protect the very
rights it has transgressed." 445 U.S. 622, at 651.
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The Goal of Accountability and Deterrence
In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court
held that deterrence of government actions which violate
constitutional rights is a major reason why a Bivens remedy
is more effective than that afforded under the FTCA:
Because the Bivens remedy is recoverable
against individuals, it is a more effective
deterrent than the FTCA remedy against the
United States. It is almost axiomatic that
the threat of damages has a deterrent effect...
particularly so when the individual official
faces personal financial liability. 446 U.S. at 21.
The Court was bolstered in its reasoning by pointing to
the availability of punitive damages under Bivens as well.
S. 1775. would eliminate Bivens suits against individuals
acting within the scope of office or employment, thus even
including cases in which employees act with malice or intent
to violate constitutional rights. Yet S. 1775 provides no
alternative deterrent except the possible threat of discip-
linary action by the agency or department for whom the em-
ployee works- Under section 5(f):
If a civil action or proceeding under section
1346(b) or 2672 of this title arising under the
Constitution of the United States results in a
judgment against the United States or an award,
compromise, or settlement paid by the United
States, the Attorney General shall forward the
matter to the head of the department-or agency
which employed the employee at the time of the
act or omission for such further administrative
investigation or disciplinary action as may be
appropriate.
This is wholly inadequate as a substitute deterrent. The
record of agency discipline has been dismal, particularly
in the area of intelligence and law enforcement abuses which
gave rise to so many Bivens actions. -Although hundreds of
employees were involved in illegal mail opening, black bag
job, wiretapping, and surveillance programs, few were dis-
ciplined. Agency "morale" was more important. Similarly,
few were prosecuted, since the Justice Department was in-
volved in a clear conflict of interest for having designed
and carried out many of these programs. The few were pardoned.
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At the same time Bivens actions have increased accountability.
and served as a deterrent. While agency officials may not
state this publicly, the threat of Bivens actions has led em-
ployees to demand clear guidlines to know what "they can and
cannot do." This has resulted in the FBI and CIA proposing
agency charters, the development of executive orders on intel-
ligence activities, and Attorney General guidelines for a range
of investigative activities from domestic security inquiries to
the conduct of undercover operations.
As an alternative to Bivens suits, we recommend that a discip
linar mechanism be spelled out in the legislation. The out-
lines of such T mechanism were included in previous proposals
before this Committee in the last two congresses. We believe
the mechanism must meet the following criteria. (1) The
victim of a constitutional tort must have the right to initiate
an investigation which cannot be terminated without a statement
of reasons. The victim must have the right to present evidence
to the investigating body. (2) If the evidence warrants, a
disciplinary hearing must be held by an independent body-, indep-
endent of the agency or department employing the individual. The
victim must have the right to present evidence and call witnesses
at the hearing. The employee must have all due process rights,
including the specification of standards under which discipline
may and /or must be meted out. For example mandatory discipline
should be required when "bad faith" is shown 1/ A range of-
possible disciplinary actions from fines to dismissal must be
specified. (3) Finally, the victim must have the right to
agency and judicial review if no punishment is meted out, or if
the punishment is wholly inadequate for the violation.
With respect to former employees, the legislation should specify
that they must submit to the disciplinary mechanism in exchange
for government substitution as the party defendant.
One other option is to provide for punitive damages and jury
trials under the FICA for constitutional tort violations. Ex-
emplary damages against the government may have the effect of
deterring constitutional violations ( for example, promulgat-
ion of clear guidelines and policies to be followed in areas
constitutional rights) and insuring disciplinary act-
ion. The public may insist on discipliary action if large
awards are paid for egregious violations.
While the system may be complicated, it should not be viewed
as a procedure for routine use. Only in egregious cases would
a citizen follow through a disciplinary proceeding. Only.in
egregious cases would the courts award punitive damages.
1 Under section 5(f), a referral is made if an award of
damages is made. Since the government may invoke the
employee's good faith defense under S. 1775, it must be
assumed that bad faith has been demonstrated in such
cases. In our view, a hearing should be held and
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The Goal of Freeing Individual Employees from the Burden
of Litigation.
Contrary to administration claims, S. 1775 will not remove
individual officials from participation in protracted lit-
igation. Even assuming the government interprets scope of
office or employment broadly enough to substitute itself as
the party defendant in most cases, the individual employee
will be forced to participate extensively in the litigation
as both sides contest the assertion of a "good faith" de-
fense. The government will call the employee as a witness
to establish the defense. The plaintiff will employ dis-
covery and cross examination to overcome the defense. Only
if the government waives the good faith defense will the
individual employee be spared extensive probing of his actions
and state of mind.
The Goal of Reducing the Cost of Constitutional Tort Litigation
Similarly the cost of litigation---now involving payments to
private counsel---will not be reduced but internalized under
S. 1775. Protracted and expensive litigation is promised if
the government contests (1) whether or not a violation is
a constitutional tort, see page 5 supra and (2) whether
or not the employee acted in "good faith." Since the govern-
ment wants to do both, it is difficult to reconcile this posture
with its insistence that it wants this legislation to facilitate
De-
settlements and bring litigation to a prompt resolution.
fining constitutional torts in the legislation, waiving the
good faith defense, and providing for class actions would be
three ways to reduce the cost of litigation. If the cost
savings are passed on to victims'of constitutional torts as
compensation and remuneration for the cost of vindicating con-
stitutional rights, the legislation would provide the basis for
a substitute remedy for Bivens.
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Other Concerns
Finally, we have other concerns about S. 1775 which we would
like to take up with you or your staff. For example, we ob-
ject to section 9 of the bill which attempts to limit ind-
ividual liability for employees who violate the federal wire-
tap statute, 18 U.S.C. 2520. Congress, in enacting the wire-
tap statute, considered how to protect a specific constitutional
right and devised a specific remedy for its violation. It
should be reevaluated in just those terms and not in the con-
text of a bill designed to estabish an overall scheme of gov-
ernmental liability. The section should be deleted and a
bill to amend the Safe Streets Act should be introduced by
the Administration so that the ramifications of the change
can be considered frontally.
Conclusion
In. this letter, we have tried to set forth our major problems
with S. 1775 as introduced.
We look forward to meeting with you or your staff at
your convenience. -
Respectfully,
Jerry J. "Berman
Legislative Counsel
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