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counsel to raise these arguments cannot be limited then continuation of the Department program would be inadvisable.

The staff report also expresses concern that by defending Federal employees in civil cases, the Department may inadvertently be discouraging vigorous investigations and, or even prosecutions, of these same employees by other Department officers and employees. Under the order, the Department will retain private counsel to represent a Federal employee in a civil suit even if a criminal investigation of the same employee for the same conduct is pending. Moreover, the Department will hire private counsel if the employee is being prosecuted for conduct unrelated to that involved in civil suits.

My concern about this policy is that even if there is no adverse impact upon criminal investigations, there may be substantial public skepticism about any decision not to prosecute a Federal employee for conduct which is the subject of a civil suit in which the Department has retained private counsel to defend the employee. The public may be equally skeptical if an indicted employee is allowed to plead to a lesser charge. În short, when the Department accepts a lesser plea or fails to prosecute a Federal employee while also paying for private counsel to defend that same employee in a civil action, it appears as if the Department is more interested in protecting the employee than in holding him accountable.

The Department argues that on balance, these problems do not outweigh the public interest in representing Federal employees. As I have said, I am sympathetic with the need to protect Federal employees from the costs of litigation in harassment suits. I do not believe, however, that this program is the proper response. I believe that a real alternative to the Department's problematic policy of hiring private legal counsel lies in the adoption of a modified version of the amendment to the Federal Tort Claims Act (FTCA) which the Department has proposed. See exhibit 55 at page 926. Under the Department's proposal the United States would be substituted as the defendant in civil cases involving Federal employees after the Attorney General has certified that the employee was acting within the scope of his employment. This would substantially reduce the need to retain private counsel as the Government-and not the individual-would be held liable for any damages.

Given this alternative, I agree with the conclusion in the staff report that the Judiciary Committee should move in an expeditious manner to adopt appropriate amendments to the FTCA. I would caution. though that in any amendment to the Tort Claims Act immunizing Federal employees from civil suit, it is particularly important that the committee insist on the inclusion of some system of strict individual accountability. It is essential to maintain an alternative way to discipline Federal employees who violate the constitutional rights of Americans. For employees who cannot be made subject to such a disciplinary procedure, personal liability must be continued. Under no circumstances should the Department's bind in hiring private counsel lead to any net reduction in the accountability of Federal employees. Any bill amending the Tort Claims Act which does not strengthen disciplinary procedures and provide for direct suit against

employees not subject to disciplinary proceedings is totally unacceptable to me.

Pending action on Tort Claims Act amendments the committee should hold in abeyance any recommendation to the Appropriations Committee that the Justice Department phase out its program of hiring private counsel. I sincerely hope no more money will need to be appropriated for the private counsel program and that obligations under existing contracts with private counsel can be fulfilled by the 1977 fiscal year appropriations.

It is my hope that this staff report will sensitize both the Justice Department and the Judiciary Committee to the need for action to maintain and strengthen the system of accountability for Federal employees while at the same time providing a more rational system for defending Federal employees for actions taken within the scope of their employment.

JAMES ABOUREZK,

Chairman, Subcommittee on Administrative
Practice and Procedure.

I. OVERVIEW

Investigations of the Senate Select Committee on Presidential Campaign Activities (Senate Watergate Committee) and the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities (Senate Intelligence Committee) revealed and documented widespread violations of the civil liberties of American citizens by Federal officials. Illegal campaign practices, illegal electronic surveillance, illegal surreptitious entries, illegal mail openings, misuse of Government agencies, and harassment of citizens exercising their first amendment rights had been commonplace. Approximately 200 civil suits have been filed by the victims of these abuses against the present and former Federal officers and employees allegedly responsible. See exhibit 60 at page 944.

With few exceptions these lawsuits have been brought against the present and former officers and employees in their individual capacity, as distinguished from being brought against them in their official capacity under the Federal Tort Claims Act, 28 U.S.C. 2671, et seq. (FTCA). This is because-with one limited exception-the Federal Tort Claims Act does not waive sovereign immunity with respect to civil suits alleging deprivation of constitutional rights.

Jurisdiction in a suit under the Tort Claims Act is based on 28 U.S.C. 1346 (b) and extends only to claims for which sovereign immunity has been waived by the FTCA. The general waiver of sovereign immunity for certain common law torts committed by Federal employees is contained in section 2674 of title 28. This waiver is, however, subject to exceptions enumerated in section 2680. For example, claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ***, whether or not the discretion involved be abused" are excluded by section 2680 (a), as is "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights**** (section 2680 (h)).

In 1974 Congress amended section 2680 (h) to limit this latter exclusion only to claims against a person who was not an "investigative or law enforcement officer." Under the amendment, therefore, Federal Tort Claims Act suits can now be brought against an "investigative or law enforcement officer" in his official capacity for assault, battery, etc. See exhibits 49, 50, 51, and 52 at pages 853 to 915.

Bringing suits against an "investigative or law enforcement officer" under the FTCA is, however, not-like most other FTCA cases-an exclusive remedy for an aggrieved party. An aggrieved party can bring a suit against the officer either under the FTCA or against the officer in his individual capacity.

In contrast, section 2679 (b) makes tort suits against Federal employees for negligent operation of a motor vehicle the "exclusive" remedy which an aggrieved plaintiff may pursue. In such a suit the Attorney General has a statutory obligation to defend such employee if he determines that the employee was "acting within the scope of his employment." Section 2679 (c). Upon making a determination that an employee was acting within the scope of his employment, the Attorney General is required to certify this fact to the court in which the suit is pending, may remove the case to a Federal district court if the case was pending in a State court, and must substitute the United States as the sole defendant in the case. See section 2679 (d). If the employee is found to have been negligent, the United States-and not the employee is liable for monetary damages, not including punitive damages. In these cases, regular Department staff attorneys represent the United States. There is no attorney-client relationship between the Department attorneys and the Federal employee because that employee-upon certification by the Attorney General-is no longer a defendant in the suit.

For most constitutional torts, however, such as invasion of privacy, there is no explicit provision of law requiring the Government to defend the employee, no basis for the Government being substituted as the sole defendant, and no basis for Government liability. The defendant in such cases is the Federal employee, who may be held to be personally liable. Cf. Burnbaum v. U.S., 436 F. Supp. 967.

This potential individual liability of a Federal officer or employee is a recent development in the law. Beginning in 1970, the Civil Rights Act was amended to permit citizens to bring civil actions against individuals and State officials for deprivations of constitutional rights. See 28 U.S.C. 1983. In 1971 the Supreme Court held in the case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971) (exhibit 42 at page 625) that there was an analogous Federal common law right for an aggrieved citizen to sue Federal officials for deprivations of constitutional rights. Subsequent cases have held that Federal officials have a qualified-not an absolute-immunity to protect themselves from such suits. See Bivens, 456 F.2d 1339 (2nd Cir. 1972) (exhibit 43 at page 668 and exhibit 41 at page 581).

As a result of the new availability of civil law suits against Federal officers for constitutional tort, most of the civil suits arising from Watergate and the intelligence abuses have been brought against officers or employees in their individual capacity. The purpose of the Attorney General's January 19, 1977, order is to offer the services of the Department of Justice in defending or in retaining private counsel to represent employees in these cases.

This offer is entirely voluntary on the Department's part. The Department will defend employees only under the terms of the order and has absolute discretion in defining the conditions of such representation. The United States has no statutory authority, however, to pay damages which are awarded if the employee is held to be liable.

The purpose of the Department providing representation is "to protect the interests of the Government by assuring adequate representation with respect to legal issues in which the United States has a concern and by freeing its employees from the fear that proper and vigorous performance of their duties may result in substantial per

sonal legal expenses." See memorandum of Attorney General Levi, January 19, 1977 (exhibit 7 at page 90). While it has been a longstanding Department policy to represent Federal employees in civil suits arising from official conduct, the need for a policy statement became apparent with the flurry of civil suits since 1976 alleging illegal surveillance and harassment activities. In addition to the stated purpose of shielding employees from the cost of defending these civil suits, the order addresses the complex conflict situations which arise in such suits.

First, a number of the Federal employee defendants in these civil suits are simultaneously under investigation for the same activities by the Department's Criminal Division for possible criminal indictment. In this situation where a Federal employee is a "target of a federal criminal investigation" but where "no decision to seek an indictment or issue on information" has been made, the Department will retain private counsel at its expense to represent the employee in any civil suits covering the same subject matter involved in the criminal investigation. If a Federal employee is subsequently indicted for the same conduct, the Department will cease to pay for such private counsel. If, on the other hand, the criminal investigation is terminated without indictment, regular Department staff counsel will take over the defense of the employee.

(Staff attorneys from the Department will also represent a Federal employee in a civil suit who the Department is simultaneously investigating for conduct which is not the subject of that particular civil suit. Even if the Federal employee is indicted, regular Department attorneys will continue to represent the employee in unrelated civil suits.)

Secondly, in addition to hiring private counsel when there is an ongoing criminal investigation, the Department will retain private counsel when there is a conflict among defendants. Where one of two Federal employee defendants in a case "takes a position that is contrary to that of the other" defendant, the Department "cannot represent both" because it is not for the Department "to determine who is telling the truth." See exhibit 13 at page 227. Separate private counsel are then retained to represent each employee.

A third grounds for hiring private counsel has developed since the order was issued. As issued on January 19, 1977, the order made it clear that the private counsel retained by the Department to represent Federal employees were not completely independent of supervision by the Attorney General. In fact, "Supplementary information" issued as a part of the order stated explicitely that "the Department will not *** pay for representation where the positions taken would oppose positions maintained by the United States itself." See exhibit 1 at page 29. (Emphasis supplied.)

During the drafting of the initial order, there was substantial debate within the Department as to whether regular staff attorneys should be free to raise legal arguments which conflict with Department positions. The draft order circulated for comment within the Department contained a provision that "all legal arguments appropriate to the employee's case should be raised (by Department staff attorneys representing a Federal employee) even if they conflict with Department of Justice or other government positions." See exhibit 5 at page 78.

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