LETTER OF ACLU TO RAYMOND S. CALAMARO, OCTOBER 3, 1977 Washington Office October 3, 1977 Hon. Raymond S. Calamaro Deputy Assistant Attorney General Office of Legislative Affairs Department of Justice Room 1603 Constitution Ave. Bet. 9th & 10th Sts. Dear Ray: We have completed a preliminary review of the Department's bill "To amend Title 28 of the United States Code to provide for an exclusive remedy against the United States in suits based upon acts or omissions of United States employees, and for other purposes. We support certain aspects of this proposal and believe that 1. Good faith defense Section 3 of the bill provides, "That without any effect or 1 Hereinafter "the letter." [See p. 26.] 600 Pennsylvania Avenue, S.E. Washington, D.C. 20003 (202) 544-1681 John H. F. Shattuck, Director Jay A. Miller, Associate Director Kathleen Miller, Legislative Representative William F. Ware, Pamela S. Horowitz, Legislative Counsel⚫ Ellen Leitzer, Staff Counsel • Jerry J. Berman, Legislative Associate Norman Dorson, Chairperson, Board of Directors Aryal Neior, E xecutive Director As the letter concedes, "The fact that the government routinely accepts liability for the negligent conduct of its agents, makes it difficult to explain why it does not also accept liability for the intentional, albeit mistaken, constitutional torts of those agents." For this reason, the bill allows for an award of actual or compensatory damages even where the good faith defense is available. Thus, the only practical effect of the good faith provision is to preclude a minimum recovery. Particularly since the good faith defense is a "developing area of law," proof of the existence or non-existence of the defense will require the expenditure of countless hours of judicial time in each case where it is asserted. This drain on judicial resources cannot be justified where the only effect is the preclusion of a minimum recovery and where, in the absence of individual defendants, the rationale for the defense does not exist. Since "as between the innocent citizen damaged by the constitutional wrong of a mistaken government agent and the government who set the agent in motion, it is more equitable to require the government to pay for the loss," and since the availability of a good faith defense can only result in the expenditure of precious judicial resources, with no countervailing benefit, the proposal should be amended to prohibit the assertion of a good faith defense. 2. Individual liability. The bill totally immunizes individual employees from liability in situations where a remedy is available against the government. Thus, even an individual who acted with malice and an intent to inflict harm would incur no personal liability for the consequences of his/her actions; and the innocent victim of such actions would be unable to recover punitive damages, even though such an award clearly would be justified as a matter of equity. The letter states that this approach is warranted because "experience shows that egregious cases are extremely rare." It appears to us that the rarity of such cases cuts in favor, rather than against, the imposition of personal liability. Moreover, the potential imposition of personal liability provides a necessary deterrent. Given the severity (and therefore unlikelihood) of criminal prosecution, the only real deterrent under the proposed legislation is the possibility of disciplinary action, which is plainly inadequate. Since an award of punitive damages would be justified where the employee acted with malice, it is no answer to suggest that, because most federal employees would be able to satisfy only a modest judgment, a lawsuit against them would be "essentially a punitive gesture." In any event, from the viewpoint of an innocent victim, even a modest amount is better than none. 3 In short, we believe that the retention of individual liability, in cases where the employee acted with malice or an intent to inflict harm, is necessary for its deterrent value and as a matter of public policy, since it promotes confidence in government and provides for the equitable treatment of innocent victims of such misconduct. Accordingly, we believe that in egregious cases the victim of a constitutional tort committed by a federal employee should be able, at the outset, to sue both the government and the individual employee. At the least, we would urge that the proposal be amended to provide for suit against the individual employee in those cases where, in the course of the initial litigation against the government, it is determined that the employee acted with malice or intent to inflict harm. To avoid due process problems with respect to the employee, such a determination would not be binding in a subsequent suit against the employee. Rather, the statute specifically would provide that the issue of individual liability be determined de novo. 3. Availability of alternative remedy Section 6 (d) (4) of the proposed bill provides that "[w]here an action or proceeding under this chapter is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the action or proceeding shall be dismissed, By providing that the FTCA action shall be dismissed, the bill leaves the victim without a remedy if it is subsequently determined that s/he is not in fact entitled to compensation or other benefits under another law and if, in the meanwhile, the time for filing a suit under the FTCA has expired. The bill should thus be amended to provide that, where an alternative remedy may be available, the FTCA claim should be held in abeyance until proceedings for compensation or other benefits under the other law have been completed and shall be dismissed only if the claimant's entitlement to other benefits is established during the alternate proceedings. The proposed bill provides that the Attorney General shall certify whether "the employee was acting within the scope of his office or employment or under color thereof, ... .' While this certification is subject to review by the district court in cases where suit originally was filed in state court, it is apparently conclusive where the suit originates in federal court. Since the determination as to whether the employee was acting within the scope of his office or under color thereof, is a question of law, it should be made in each instance by the court and not by the Attorney General. In addition to the above-outlined reservations, we already have expressed our concerns relative to the availability of class actions and jury trials under the proposed legislation and understand that the Department is looking into these matters. We also understand that the omission of costs and attorneys' fees in non-wiretap cases is a drafting error which the Department intends to correct. We are prepared to submit a more detailed analysis of the proposal at a later date, but we wanted to put our initial reactions in writing for your review and consideration. We look forward to working with you on this and other matters of mutual concern. Sincerely.. John H.F. Shattuck Pamela S. Horowitz CC: Hon. Patricia Wald LETTER FROM COMMON CAUSE, THE AMERICAN CIVIL LIBERTIES UNION AND OTHERS TO ATTORNEY GENERAL, NOVEMBER 21, 1977 21 November 1977 The Honorable Griffin B. Bell Attorney General Washington, DC 20530 Dear Mr. Attorney General: We have completed a review of the legislation drafted by the Department Our most fundamental concern stems from the impact this proposal would ... Our detailed reservations about the bill can best be summarized in rela- I. Protection of Federal Employees from Individual Liability The letter states that a primary purpose of the proposed legislation is "to protect federal employees from suits for money damages arising out of the performance of their duties." The bill thus immunizes individual employees from liability in all situations where a remedy is available against the government. |