1 SEC. 7. Section 2679 of title 28, United States Code,

2 is amended by adding a new subsection (f) as follows:

3 "(f) Where an action or proceeding under section 1346

4 (b) or 2672 arising under the Constitution of the United

5 States results in a judgment against the United States or an 6 award, compromise, or settlement paid by the United States, 7 the Attorney General shall forward the matter for such 8 further administrative investigation or disciplinary action as 9 may be appropriate to the head of the department or agency 10 by which the employee whose violation or act or omission 11 gave rise to the claims was employed.".

12

SEC. 8. Section 2680 (h) of title 28, United States 13 Code, is amended to read as follows:

14 "(h) Any claim arising out of libel, slander, misrepre15 sentation, deceit, or interference with contract rights.".

16

SEC. 9. (a) Subsections (a) through (d) of section 17 4116 of title 38, United States Code, are repealed, and 18 subsection (e) of that section is amended by deletion of the 19 designation "(e)", by deleting the words "person to whom

20 the immunity provisions of this section apply (as described

21 in subsection (a) of this section)," and inserting in lieu 22 thereof the words "employee of the Department of Medicine 23 and Surgery".

24

(b) Subsections (a) through (e) of section 224 of the 25 Public Health Service Act, as added by section 4 of the Act

8

1 of December 31, 1970, and renumbered (42 U.S.C. 233

2 (a) through (e)), are repealed, and subsection (f) is 3 amended by deletion of the designation " (f)".

4

(c) Subsections (a) through (e) of section 1091 of 5 the Foreign Service Act of 1946, as added by section 119 6 of the Act of July 12, 1976 (22 U.S.C. 817 (a) through 7 (e)) are repealed.

8 (d) Subsections (a) through (e) of section 1089, title 9 10, United States Code, are repealed. Subsection (f) is

10 amended by deleting the words "person described in sub11 section (a)" and inserting in lieu thereof the words "em12 ployee of the Armed Forces, the Department of Defense, or 13 the Central Intelligence Agency,".

14

(e) Subsections (a) through (e) of section 307 of the 15 National Aeronautics and Space Act of 1958, as added by 16 section 3 of the Act of October 8, 1976 (42 U.S.C. 2458a

17 (a) through (e)), are repealed, and subsection (f) is

18 amended by the deletion of the designation "(f)", by the 19 deletion of the words "person described in subsection (a)" 20 and by the insertion in lieu thereof of the words "employee 21 of the National Aeronautics and Space Administration".

22

SEC. 10. Section 2520, title 18, United States Code, 23 shall not apply to civil causes of action against officers or 24 employees of the United States while acting within the scope

9

1 of their office or employment, or while acting under the color

2 of such office or employment.

3 SEC. 11. This Act shall apply to all claims and suits

4 pending on the date of enactment or filed or accruing there

5 after.

AMENDMENTS OF SENATOR EASTLAND

To extend the provisions of section 2679 of title 28 to judgments entered on or after January 1, 1975.

[S. 2117, 95th Cong., 1st sess.]

AMENDMENTS intended to be proposed by Mr. Eastland to S. 2117, a 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, viz: On page 9, line 3, after "Sec. 11.", insert "(a)".

On page 9, after line 5, add the following new subsection:

"(b) Any judgment entered on or after January 1, 1975, against any employees of the Government (as defined in section 2671 of title 28, United States Code) resulting from a suit which, if pending on the date of enactment of this Act, would have been within the purview of subsection (b) of section 1346 and chapter 171 of title 28, United States Code, as amended by this Act, shall, to the extent of the liability of the employee of the Government under such judgment, be deemed to have been an action brought against the United States under such subsection and chapter, as amended by this Act, the United States shall be deemed to have been substituted as a party defendant in lieu of such employee of the Government, and the United States shall, to the extent of the liability of that employee, be responsible for payments necessary to satisfy that liability.".

AMENDMENTS SUBMITTED BY DEPARTMENT OF JUSTICE AT HEARING ON JANUARY 26, 1978, REGARDING "GOOD FAITH," CLASS ACTIONS, AND SECTION 2680 EXEMPTIONS

1. Amend subparagraph (b) of Sec. 3 by adding in the first proviso, after "$1,000," and before "except," on page 2, line 25, the words "plus a reasonable attorney's fee and other litigation costs reasonably incurred."

2. On page 3, line 2, change "in violation of" to "as defined in."

3. On page 3, line 7, delete the language following the colon to the word "sustained" on line 17, and substitute the following:

"With the further proviso, however, that the United States may not assert as a defense to a suit against it alleging a Constitutional tort, the absolute or qualified immunity of the employee (except members of Congress, judges or prosecutors or those performing such functions) or his good faith belief in the lawfulness of his conduct."

4. Sec. 3 is further amended by adding a subparagraph (c) at the end thereof to read as follows:

"Section 2678 of Title 28, United States Code is amended by inserting at the beginning thereof the words 'Except as otherwise provided by the third paragraph of Section 2674 of this title,' and changing the word 'No' to 'no'."

5. Sec. 4 is amended by inserting "(a)" after "Sec. 4" on page 3, line 18, and by adding subsection "(b)" to Sec. 4 and further amending Section 2675(a) of Title 28, by changing the period at the end of Section 2675(a) to a semicolon and adding the following language

"Provided, however, that upon a claim for money damages arising from the violation of the Constitution of the United States, class actions in conformity with the requirements of the Federal Rules of Civil Procedure may be instituted provided that the claim presented to the appropriate Federal agency expressly asserts the representative nature of the claim and specifically describes the members of the class, the common interests of the claimant and such members, and the basis upon which the claimant believes he can fairly and adequately protect the interests of the class as their representative."

6. Amend Sec. 6 of the bill by deleting subsection "(d) (3)" of Section 2679(d) of Title 28, on page 6, lines 13 to 15, and renumbering subsection "(d) (4)" on page 6, line 16, to "(d) (3)".

7. Amend Sec. 8, on page 7, lines 12 to 15, to read as follows: "Sec. 8(a). The preamble to Section 2680 of Title 28, United States Code, is amended to read as follows:

"Except for tort claims arising under the Constitution of the United States, the provisions of this chapter and section 1346 (b) of this title shall not apply to and the United States shall not substitute itself in-"

(b) Section 2680 (h) of Title 28, United States Code, is amended to read as follows:

"(h) any claim arising out of libel, slander, misrepresentation, deceit, or interference with contract rights."

AMENDMENT SUBMITTED BY DEPARTMENT OF JUSTICE ON
APRIL 10, 1978, REGARDING DISCIPLINARY PROCEDURES 1

Title 5, United States Code, is amended by adding a new chapter 78 containing new sections 7801, 7802, 7803, 7804, 7805, and 7806 as follows:

"Section 7801. Definitions

For the purposes of this chapter:

(1) "Person" means any natural person subject to the Constitution of the United States;

(2) "Federal agency" means a Federal agency, as defined in section 2671 of title 28, United States Code, which employs or employed an "employee" defined in subsection (3) of this section;

(3) "Employee", unless otherwise described, means a present "employee of the Government" as defined in section 2671 of title 28, United States Code; and (4) "Disciplinary Action" means removal, suspension without pay, demotion, admonishment or reprimand for such cause as will promote the efficiency of the service.

Section 7802. Administrative inquiries

(a) (1) Where a claim filed by a person under section 2675 of title 28, United States Code, arising under the Constitution of the United States, results in an administrative award, compromise or settlement paid by the United States, and except as provided in section 7803, such person within 30 days of execution of the award, compromise or settlement, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(a) (2) Where a civil action brought in any court by a person under section 1346(b) of title 28, United States Code, on a claim arising under the Constitution of the United States, results in a judgment against the United States, or a settlement or compromise executed by the United States, and except as provided in section 7803, such person within 30 days after time for appeal of the judgment has expired, or within 30 days after execution of the settlement or compromise, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(b) Within 60 days of the effective date of the regulations described in section 7805 of this chapter, the head of each Federal agency to which such regulations are applicable shall issue rules, regulations, and instructions for initiating and conducting an administrative inquiry requested under subsection (a) (1) or (a) (2).

(c) A person who has requested an inquiry under subsection (a) (1) or (a) (2) of this section;

(1) May submit a statement, and if a hearing is held, give testimony, pursuant to the rules, regulations, and instructions issued under subsection (b), and shall be notified of the action taken on such request or inquiry and the reasons therefore, and

1 See letter of April 10, 1978, at p. 52 in the appendix. This amendment would add a new§ 12 to the bill.