21-221 - 78 - 38

Pursuant to our telephone conversation of January 24, 1977 and Mr. Lowe's letter to Mr. Bush dated January 17, 1977 about your proposed report to the Chairman of the House Subcommittee on Government Information and Individual Pights regarding lawsuits against the Government as a result of alleged illegal activities covered by provisions of H.R. 12039, this Agency interposes no objection.

If you have any questions, please contact the undersigned on 351-7231.

This is in response to your letter to the Secretary of the Treasury of January 17, 1977 forwarding GAO's proposed report regarding lawsuits against the Government as a result of alleged illegal activities covered by provisions of H.R. 12039.

We furnished the report for comment to the Commissioner, IRS; the Director, Bureau of Alcohol, Tobacco and Firearms; and Treasury's Office of the General Counsel. They declined to comment on the draft since it does not appear to be of primary interest to Treasury and we have so notified your Justice Department site staff.

The Commissioner, IRS did advise us that provisions of H.R. 12039 would have an adverse effect on the operations of IRS. He would like to be given an opportunity to comment on any proposal of this type if introduced in this Congress.

Thank you for giving us the opportunity to review this proposed

report.

Sincerely yours,

Willer 4. We Zema

Wilbur R. DeZerne

Director, Office of Audit (OS)

Victor L. Lowe, Director (GGD)

United States General Accounting Office
Washington, D.C. 20548

Exhibit 41: Friedman Article, 5 Hofstra Law Review 501 (1977)

DEVELOPMENTS IN CONSTITUTIONAL
LAW

THE GOOD FAITH DEFENSE IN CONSTITUTIONAL

LITIGATION

Leon Friedman*

I. INTRODUCTION

Suits against government officials have increased enormously in recent years. In fiscal year 1960 the Administrative Office of the United States Courts reported 247 civil rights cases' filed in federal district courts.' By fiscal year 1970 there were 3,985 such suits, an increase of 1,614%, and by fiscal year 1976, the figure had grown to 12,329, an increase of 4,991% over 1960.' These figures include both civil rights suits against state officials under 42 U.S.C. § 1983' and actions against federal officials for

• Associate Professor of Law, Hofstra University School of Law; A.B., Harvard Col lege; LL.B., Harvard University. The author was one of the attorneys representing Morton H. Halperin in Halperin v. Kissinger, 424 F. Supp. 838 (D.D.C. 1976), discussed in this article.

1. Civil rights suits are divided into five separate categories by the Administrative Office of the United States Courts: Voting, Jobs, Accommodations, Welfare, and Other Civil Rights. These categories correspond to suits brought under 42 U.S.C. §§ 1981 through 1985, suits under Title VII, 42 U.S.C. § 2000e (employment discrimination), and suits under Title I, 42 U.S.C. § 2000a (public accommodations). Included also are suits against federal officers for injunctions or damages for constitutional torts. See text accom panying notes 46-50 infra. In fiscal year 1976, a total of 1,276 cases out of 12,329 filed involved a federal official as defendant. See 1976 ANNUAL REport of the Director of the ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, Table C-2, 1-14 [hereinafter cited as 1976 ANNUAL REPORT). Some of these cases involved suits against private individuals brought under §§ 1981, 1982, Title VII and Title I. It is impossible to determine precisely how many of the civil rights cases involved only suits against state or federal officials. A computer printout supplied to the author on December 29, 1976, of all the civil rights cases filed in fiscal year 1976 indicates that the great majority of the cases involved voting. welfare, and "other civil rights" issues which would generally involve government officials. Many employment discrimination cases also involve government agencies as employers. As indicated in this article, the great majority of reported cases brought for violations of civil rights involve § 1983 cases against state officials or suits against federal officials for constitutional violations.

2. 1970 ANNUAL REPORT OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS 109 [hereinafter cited as 1970 Annual Report].

3. 1970 ANNUAL REPORT, supra note 2, at 109.

4. 1976 ANNUAL REPORT, supra note 1, Table 16, at 78.

5. 42 U.S.C. § 1983 (1971) provides:

Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory subjects or causes to be subjected, any

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[Vol. 5, 1977]

constitutional torts after the Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The Administrative Office further reports that an additional 7,460 civil rights suits were brought by prisoners against state and federal prison officials. The total of 19,789 cases was the largest category of civil litigation in the federal district courts, comprising 15% of the total filings in 1976.'

These suits involve claims against almost every type of government official, from the President of the United States," the Attorney General,' high White House and FBI officials," and Cabinet Officers," to sheriffs," police officers," school administrators," IRS agents," hospital superintendents," governors," state military officials," building inspectors," and prison officials.20

A wide variety of official actions form the basis of such law suits: wrongful death claims," assaults," illegal searches," illegal

citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

6. 403 U.S. 388 (1971).

7. 1976 ANNUAL REPORT, supra note 1, Table C-2, 1-14-15.

8. See Halperin v. Kissinger, 424 F. Supp. 838 (D.D.C. 1976).

9. Id. See also Hallinan v. Mitchell, 418 F. Supp. 1056 (N.D. Cal. 1976).

10. Among other defendants in the Halperin case were National Security Advisor and later Secretary of State Henry A. Kissinger, Presidential Assistants H. R. Haldeman and John Ehrlichman, and Assistant Director of the FBI William C. Sullivan.

11. Economou v. United States Dep't of Agriculture, 535 F.2d 688 (2d Cir. 1976) (Secretary of Agriculture), cert. granted sub nom. Butz v. Economou, 45 U.S.L.W. 3570 (U.S. Feb. 22, 1977).

12. Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976).

13. Boscarino v. Nelson, 518 F.2d 879 (7th Cir. 1975); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970).

14. Wood v. Strickland, 420 U.S. 308 (1975); Picha v. Wielgos, 410 F. Supp. 1214 (N.D. III. 1976).

15. White v. Boyle, 938 F.2d 1077 (4th Cir. 1976).

16. O'Connor v. Donaldson, 422 U.S. 563 (1975).

17. Scheuer v. Rhodes, 416 U.S. 232 (1974); Hahn v. Sargent, 523 F.2d 461 (1st Cir.

18. Chaudoin v. Atkinson, 406 F. Supp. 32 (D. Del. 1975).

19. Laverne v. Corning, 522 F.2d 1144 (2d Cir. 1975).

20. Mukmuk v. Commissioner of the Dep't of Correctional Servs., 529 F.2d 272 (2d

Cir. 1976).

21. Haber v. County of Nassau, 418 F. Supp. 1120 (E.D.N.Y. 1976).

22. Rendl v. Rizzo, 418 F. Supp. 96 (E.D. Pa. 1976)

23. Warner v. Croft, 406 F. Supp. 717 (W.D. Okla. 1975).

arrests" or break-ins," inadequate medical attention," tax investigations," illegal wiretaps" and a range of improper actions by school administrators."

Any one of several factors may be responsible for this outburst of civil rights activity: Victim groups have developed a greater awareness of their legal rights and a willingness to assert them; new legal rules such as those which emerged from the Bivens decision have provided a rationale for such suits; and congressional committees, such as the Ervin and Church committees," and investigative reporters have provided solid evidence on which to base such suits.32 Regardless of the cause, federal courts have now had to cope with difficult legal questions to determine the extent to which state and federal officers at every level must answer by paying money damages for complaints about their official actions.

II. THE RETREAT FROM ABSOLUTE IMMUNITY

The existing legal standards were largely inadequate to deal with the multiplicity of claims being brought against all levels of government officials. While difficult problems have arisen regarding the nature of the constitutional right asserted," the standing of the plaintiff," the extent of his injury," or the liability of the governmental entity involved," perhaps the most crucial question

24. Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974).

25. Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974).

26. Kellerman v. Askew, 541 F.2d 1089 (5th Cir. 1976).

27. White v. Boyle, 538 F.2d 1077 (4th Cir. 1976).

28. Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).

29. See Wood v. Strickland, 420 U.S. 308 (1975); McCormack v. Attala Bd. of Educ., 541 F.2d 1094 (5th Cir. 1976); Skehan v. Board of Trustees, 538 F.2d 53 (3d Cir. 1976).

30. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

31. SELECT COMM. ON PRESIDential Campaign Activities, S. REP. No. 93-981, 93d Cong., 2d Sess. (1974); SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT to Intelligence ACTIVITIES, S. REP. No. 94-755, 94th Cong., 2d Sess. (1976).

32. Lake v. Ehrlichman, No. 74-887 (D.D.C. 1974), was filed as a result of various newspaper stories concerning the Kissinger tapes. Lowenstein v. Rooney, 401 F. Supp. 953 (E.D.N.Y. 1974), resulted from an article appearing on February 25, 1974, in the New York Times at page 52, describing how the FBI supplied secret material in its files to Congressman John Rooney in his campaign against Allard K. Lowenstein.

33. See Paul v. Davis, 424 U.S. 693 (1976).

34. See Warth v. Seldin, 422 U.S. 490 (1975).

35. See Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976). 36. City of Kenosha v. Bruno, 412 U.S. 507 (1973); Fine v. City of New York, 529 F.2d 70, 73 (2d Cir. 1975). Whether a government entity is entitled to the same kind of good faith defense as a government official is discussed in Owen v. City of Independence, Mo., 421 F. Supp. 1110 (W.D. Mo. 1976).