TESTIMONY OF GRIFFIN B. BELL, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY IRVING JAFFE, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION

General BELL. Mr. Chairmen and members of the subcommittees, I appear before the subcommittees today in support of the administration's request to amend the Federal Tort Claims Act. I am accompanied by Irving Jaffe, Deputy Assistant Attorney General, Civil Division, who will address specific provisions of the bill and respond to your detailed questions concerning them.

The legislation before this subcommittee today would redefine the relationship between the Federal employee and the private citizen. It would remove an unjust and counterproductive burden now weighing on the shoulders of Government employees, the possibility of being held liable for a sizable judgment in a civil suit brought for the way he performs his job. It would permit a citizen aggrieved by a Federal employee to sue the U.S. Government, a financially responsible defendant.

The opportunity to institute disciplinary proceedings against an employee who violates another person's constitutional rights would be strengthened without in any way diminishing the employee's liability for criminal prosecution. Finally, it would save the U.S. Government's funds by not requiring it to hire private attorneys to represent individual defendants and will simplify lawsuits against the United States.

The bill would accomplish these objectives by expanding the bases upon which the United States can be held liable for the conduct of its employees under the Tort Claims Act, and by making suits against the Government the exclusive remedy in such cases. The Congress has already recognized the merit of these objectives by completely immunizing the operators of our motor vehicles from civil suits and almost all Government physicians from malpractice suits.

The concept of immunizing Federal employees from civil liability for the performance of their duties is one of the most venerable doctrines in American jurisprudence and recognized by the Supreme Court more than 80 years ago. Versions of the immunity doctrine designed to protect members of the judicial branch run even deeper into our Anglo-American common law; and immunity for members of the legislative branch is found, of course, in the Constitution.

One of the rationales for protecting officers and employees of all branches of the Government from civil liability is to protect and encourage fearless, vigorous, and effective exercise of their job responsibilities which, even when properly discharged, undoubtedly will, from time to time, displease some of those who are affected by their actions.

In recent years, the doctrine of absolute immunity for Federal employees has come under understandable attack in light of the tragedy of Watergate.

Heretofore, a Federal official was completely immunized from personal liability and from the need to defend the suit against him if he established that the challenged conduct was performed within the scope of the outer parameters of his official duties and that those duties involved an element of discretion. More recently, however, the courts have qualified the immunity of a Government officer by requiring him to prove, in addition, his good faith belief in the lawfulness of his conduct.

Such liability for Federal employees serves no constructive purpose. First, it is of little use to the citizen plaintiff who rarely recovers substantial sums from individual employees.

Second, it is neither a practical nor realistic deterrent of improper or unlawful activity for the very reason that large judgments are so infrequent. Judges and juries are understandably reluctant to make such awards against Government workers. For those who say that the threat of suit deters improper conduct, it is equally true that the threat of suit deters proper conduct. For a punishment to be an effective deterrent it must be predictable.

Third, the prospect of being required to submit to the frequently long and probing process of civil discovery in the face of adverse publicity in the press, even with the reasonable expectation of eventual vindication, is inhibiting to the performance of one's job responsibilities and is destructive of morale. Let us remember that the very great majority of the millions of Federal workers are honest, law abiding, and conscientious.

The possibility of civil damage actions for these people tends to discourage taking difficult assignments and performing such assignments thoroughly and courageously. Instead, it has the effect of causing otherwise responsible officials to worry about "covering" themselves. I know this is true in the Justice Department and in other departments and agencies of the Federal Government.

If civil liability of Federal employees is removed, however, I recognize that some sort of mechanism should be established to insure the fair and effective disciplining of a Government employee who has violated a citizen's constitutional rights. This bill would not affect such an employee's liability under the criminal laws, but criminal liability alone is not a complete system of accountability.

To this end, I am personally agreeable to provisions which would assure effective and fair procedures to discipline an employee who has violated another's constitutional rights, procedures in which the injured person can participate in a meaningful way. We understand, however, the administration is considering such new procedures.

From a deterrent point of view, I believe that the prospects of disciplinary action and, if the conduct is criminal, the possibility of criminal prosecution, will be sufficiently strong to discourage improper conduct in the future.

A problem related to the decreasing scope of immunity given to Federal employees is the need to hire private attorneys at an ever increasing rate to perform the representational functions traditionally undertaken by department employees. The problem results from the fact that with the erosion of absolute immunity from civil suit, Federal employees are increasingly being subjected to personal suits for damages. Most suits based on constitutional torts name several employees. Frequently these Federal defendants have conflicting

1 See Department's proposed amendment to S. 2117 at p. 49 in the appendix.

accounts of underlying facts. In other cases, arguments that could best protect them from individual liability may conflict with broader policy interests of the United States. In such instances, ethical considerations prevent the department's attorneys from representing the employees.

Under present legislation there are only two alternatives. The first is to deny the Federal worker representation for conduct undertaken within the scope of his employment and require him to retain private counsel at rates that are certain to create financial disaster. The second choice is to spend the taxpayer's money to hire private attorneys to represent the employee on an independent basis without any supervision by me. Neither alternative is satisfactory.

Denying all forms of Government legal assistance for the performance of Government work would produce chaotic results. It is in the Government's interest to represent or provide representation to its employees who are sued as a necessary incident to the preservation of morale and the effective performance of their duties. It is not untoward for any employer to provide such representation to his employee. The choice of hiring private counsel also presents unsatisfactory results. The cost of private counsel is proving to be a highly expensive undertaking even though the maximum fees we have persuaded private attorneys to accept are frequently less than half their normal rates. In fiscal 1977, the Department spent over $600,000 in private counsel fees. In the first quarter of the current fiscal year, the Department paid approximately $240,000 in fees. If the first quarter figures continue at their present rate through the remainder of fiscal 1978, we will be experiencing a 60-percent increase in private counsel fees.

Notwithstanding these difficulties, the retention of private counsel is the most viable alternative by which the Government can fulfill its obligations to itself and to its employees when it cannot represent them.

Under the amendments to the Tort Claims Act proposed in this bill, the United States would become exclusively liable for all constitutional torts and most of the common law torts of its employees. Individual Federal employees would not be named as defendants in such lawsuits; and, as a result, there would no longer be many conflicts or any need to provide them with costly representation.

For the first time, this bill will provide that the United States would make itself liable in damages for the conduct of its employees for acts or omissions in most common law torts and for all actions which violate certain constitutional rights of individual Americans.1 Each citizen would be guaranteed a financially solvent defendant.

Of equal significance is the fact that the United States will not raise the immunity defenses now available to its employees who are sued personally. Even though the defenses have been greatly reduced in scope, they still afford a Federal employee with an eventual means of avoiding civil liability if the employee can establish his good faith belief in the lawfulness of his conduct.

1 See questions and answers at p. 131 to 139 in the appendix. 2 See Department amendment at pp. 48, 49.

Under the proposed legislation, the United States could not raise the good faith of its employees as a defense to liability for constitutional torts. As a practical matter, the liability of private citizens to recover damages for constitutional torts would be greatly increased if they need only prove ove violation of their constitutional rights regardless of the good faith of a Government employee.

The bill assures a monetary recovery for constitutional torts by providing for liquidated damages where actual damages are small or nonexistent. Under present law, a plaintiff must usually establish concrete injury to receive damages. Such proof is often impossible in the case of nonviolent conduct involving violations of constitutional rights which are of an intangible nature. The bill would remedy this inequity by providing for the payment of liquidated damages upon the showing of a tortious constitutional violation alone.

I view the Tort Claims Act amendments as one of the most important pieces of legislation that I have proposed from the standpoint of both our country's citizens and its employees. The legislation attempts to strike a difficult and careful balance between redressing Government wrongs suffered on occasion by individual Americans and the undisputed need to permit our Federal employees to conduct the affairs of Government in an uncowardly manner. The interests are very competitive ones. No piece of legislation can fully accommodate one without impairing the other. Under current Federal law, neither interest is being well served. I believe, however, that the bill before you goes a long way to strike as satisfactory an accommodation of both interests as I have been able to find.

This concludes my overview statement, Mr. Chairman. I and the other Department officials present will be happy to answer any questions the subcommittees may wish to raise.

Senator METZENBAUM. General Bell, what is the aegis of this bill? How did it develop? Did it come about by reason of the expenses of hiring private attorneys and a rapid escalation of those costs? Was it the fact that various Government employee organizations came in and said that this is becoming a special problem?

I am not questioning the validity of the legislation in toto. Rather, I am saying, how did the Attorney General's office happen to draft this bill? It hasn't been before Congress before; has it?

Mr. JAFFE. Excuse me. Yes, it has. We introduced a similar billnot quite as expansive, but to accomplish the same purposes in 1973 in the 93d Congress. The bill was assigned number H.R. 10439, I believe. And a similar bill was introduced by a Member of the Housean identical bill-early in this session. [H.R. 9219] The problem is longstanding.

Senator METZENBAUM. I guess that still does not answer my question. It does answer

General BELL. Let me answer that since I'm the one who got it introduced this year.

I did not know about the bill Mr. Jaffe is speaking of.

When I first became Attorney General I was told we owed about $4 million in attorneys fees to private lawyers, obligations undertaken by the previous administration. I started checking up; it de

1 See copy of H.R. 10439 at p. 215 in the appendix.

veloped that that figure was highly exaggerated. Nevertheless, we did owe money to a number of outside lawyers. I started trying to find out how we happened to get these lawyers.

Some we got because a defendant on a civil suit was under investigation under criminal allegations; so, we had a conflict. We could not be prosecuting and defending at the same time. At least that was the ruling that had been made by Attorney General Levi.

Others were far more complicated. We might have a case, let's say, of 15 or 20 defendants. Some defendants would be agencies; some, individuals. There might be some conflict in positions of some of the defendants. So, we had to get outside counsel.

In one suit-I have forgotten the name of it-I had to get an outside lawyer to interview all the defendants to see if there was any conflict in the positions before we could decide about getting outside counsel. We were able to go forward with that case-I was toldwithout getting outside counsel. So, it is terribly complicated.1

I visited FBI offices around the country. I found out that the agents were buying liability insurance-something like malpractice policies because they were so worried about civil suits.

Then the last thing that happened: I was being brought these papers to sign substituting the United States as a party for the drug manufacturers who made the swine flu shots. Congress, in its wisdom, passed a law substituting the United States as defendant anytime a drug manufacturer was sued. It struck me as rather odd that we would do that for drug manufacturers, but we would not do it for our own employees.

So, that was some of the background of it. I directed that we get a bill drawn and get it introduced. I went to see the chairman of the Judiciary Committee, Senator Eastland. I mentioned it to him, and I also mentioned it to Chairman Rodino. I mentioned it to other people. I did not find anybody opposing it; so, we went forward.

I am glad to know about the other legislation that Mr. Jaffe mentioned. But, until this moment, I thought this was a product of my own imagination.

Senator METZENBAUM. I think, Mr. Jaffe, I might correct that. The other bill was not constitutional violations.

Mr. JAFFE. Yes, sir, it was; it included constitutional violation. It was an exclusivity bill. It made the United States the exclusive defendant in both constitutional and common law torts.

General BELL. One other fact I left out that persuaded me: We had one case where we were liable. There was clear liability. I said, well, it seems to me we ought to have some arrangement where the Government could just pay these damages and just admit liability. You know, if you are wrong you ought to say that you are wrong. I found out we could not do that. You cannot get individuals to do whatever you tell them to do sometimes.

Cointel would be a good set of cases. If somebody sued you on Cointel tort, and the Government was the defendant-in a lot of those cases I would admit liability. You would have long trials for

1 See "Justice Department Retention of Private Legal Counsel to Represent Federal Employees in Civil Lawsuits," staff report of Subcommittee on Administrative Practice and Procedure.

2 See copy of swine flu bill at p. 212 in the appendix.