PROPOSED OPM REPORT ON H.R. 24 A BILL TO AMEND TITLE 28 OF THE UNITED STATES CODE WITH RESPECT TO TORT ACTIONS FILED AGAINST THE UNITED STATES AND FEDERAL EMPLOYEES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300410015-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 15
• Publication Date: September 3, 1981
• Content Type: MEMO

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OFF1C DF MANAGEMENT AND BUDGET
6GccPI-0776
September 3, 1981 4,/J"
LEGISLATIVE REFERRAL MEMORANDUM
TO: Legislative Liaison Officer
Department of Justice
Ventral Intelligence Agency
Department of Health and Human Services
Department of Education
Department of?State
Proposed OPM report on H.R. 24, a bill to amend title
28 of the United States Code with respect to tort
actions filed against the United States and federal
employees
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this request for your views is needed no later than
Friday, September 18, 1981. ORAL COMMENTS ACCEPTABLE
Questions should be referred to Maurice White (395-3856), the
-
legislative analyst in this office.
Robert E. Carlstrom for
Assistant Director for
Legislative Reference
cc: Mullinix Horowitz
Schrieber
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United States
Office of
Personnel Management Washington, D.C. 20415
M Repy R.kf To Your Rdoencc
Honorable Peter W. Rodino, 3r.
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Rodino:
Thank you for the opportunity to express the United States
Office of Personnel Management's (OPM's) views on H.R. 24, a
bill to amend title filed8 agof the ainst thetUnitedtStateseandtfederal-
to tort actions s 9
employees.
We strongly support the purpose of H.R. 24, i.e., to
resolve the serious problems caused by lawsuits seeking
financial recovery directly from federal employees
tratserhthan
from the United States. We aonile., to authorize the
adopted for resolving these problems, substitution of the United States as defendant when a federal
employee is sued personally for the allegedecodo, mmission
everof a
tort while performing his or her duties.
believe that a couple of modificatois. kind H.R. 2 24 o are legislation
warranted. Our reasons for supporting
as well as our suggested changes are set out below.
Although H.R. 24 would apply to all federal employees who
are sued in their personal capacities for actions.that are
taken within the scope of thimrrtantetorthoseoofeus,whoiare
legislation is particularly po l go concerned with personnel n aa gfedera
in theenumber?
Recently, there has bee significant
of individual liability lawsuits against supervisors and
managers based on employment decisions affecting their
subordinates. Court decisions indicate that federal
supervisors may be personally liable for damages for
recommending the removal of a subordinate if it is alleged
that the recommendation to remove wsFmotivateddby employee
statements that are protected by the
v. Blumenthal, 478 F. Supp. 176 (D.D.C. 1979). Supervisors and
allengeedcestosaryhavduee
managers also may be sued ifthey are
personnel actions without complying
114-24-3
denua 1990
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protections. Sonntag v. Dooley , 650 F.2d 904 (7th Cir.
1981); Doe v. Civil Service Commission, 483 F. Supp. 539 (S.D.
N.Y. 1986T.
If these allegations are made, an official may face not
only the threat of a judgment payable out of his own personal
funds, but also the possibility of legal fees and even the loss
of credit. We believe that federal supervisors and managers
who are faced with these threats merely for making personnel
decisions in the course of performing their daily functions may
simply refuse to make these necessary decisions.
It is difficult enough for managers to take appropriate
personnel actions against employees without the threat of
personal liability suits. When a federal manager takes an
adverse action against an employee, he or she may have to
defend that action in an Equal Employment Opportunity
proceeding, a negotiated grievance proceeding, or a proceeding
before the Special Counsel or the Merit Systems Protection
Board. The additional pressure of a personal liability lawsuit
without any strong countervailing pressure to take personnel
actions (like a bottom-line profit measure) diminishes the
likelihood of managers making hard personnel choices.
Consequently, employees who are inefficient, incompetent, or
who engage in misconduct are more likely to remain on the
federal payroll, and achieving the goal of a more efficient,
less. costly government becomes more difficult. Legislation
such as H.R. 24, which would limit personal liability suits
against federal officials, would help to alleviate this
problem. At the same time, the constitutional rights of
federal employees would still be protected either by a
proceeding under the Civil Service Reform Act of 1978 against
the responsible agency or under the Federal Tort Claims Act
against the United States.
We do, however, propose two changes to H.R. 24. First,
H.R. 24 waives, for the United States, the qualified immunity
("good faith") defense currently available to federal employees
personally sued for constitutional torts. We strongly believe
that this defense should be retained for the United States.
It is our position that .the elimination of the "good
faith" defense would simply be unfair to the employee whose
actions are questioned and, consequently, that it would be
counterproductive to sound management principles. Although the
individual employee would not be the named defendant in these
lawsuits, it is still his or her actions which are being
challenged. No one wishes to be found guilty of
unconstitutional acts and suffer the resultant stigma. Yet, if
the "good faith" defense is waived, even those employees who
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acted innocently could appear guilty of wrongdoing. Thus, we
believe that the United States should be able to assert the
"good faith" defense on behalf of an employee who in good faith
performs his or her duties in order to protect the employee's
name and reputation.
Payment upon a constitutional tort claim under H.R. 24
also carries with it the possibility of disciplinary action
against the federal.employee who was the subject of the claim.
The "good faith" defense should be retained as a necessary
protection for an employee who acted in good faith upon
reasonable grounds.
We also believe that the "good faith" defense should be
retained from a fiscal point of view. This is because, without
the defense, it would be easier for a claimant to prevail. Of
course, this would result in more of the government's dollars
being paid to satisfy these claims.
Finally, we oppose the elimination of the "good faith"
defense as a matter of public policy. Without this defense,
the likelihood that plaintiffs would succeed and the government
found liable would increase. As a result, the government would
increasingly appear in the wrong. This could further erode the
government's already tarnished image in the public's eye.
Second, as noted above, payment upon a constitutional tort
claim under H.R. 24 carries with it the possibility of
disciplinary action against the federal employee who was the
subject of the claim. More specifically, if a judgment is
entered against the United States or if a settlement agreement
is entered, the Attorney General must forward the matter to the
employing agency for administrative investigation or
disciplinary action, as may be appropriate. These disciplinary
provisions are an important part of the H.R. 24. Potential
disciplinary action will serve as an effective deterrent of
unconstitutional acts. However, we propose that when a
constitutional tort action arises in the personnel context, the
Attorney General should be required to refer the matter to the
Office of the Special Counsel of the Merit Systems Protection
Board as well as to the head of the agency.
We believe it appropriate that the Special Counsel's
office investigate matters of this type. The Office of the
Special Counsel was established by the Civil Service Reform Act
of 1978 to protect the merit system. It has the power to
investigate allegations of prohibited personnel practices
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including any violation of an employee's constitutional
rights. The Special Counsel may request that the Herit Systems
Protection Board order corrective action, which may include
reinstatement and back pay, as well as other measures required
to make the employee whole. Moreover, the Special Counsel has
the authority to initiate disciplinary proceedings against any
supervisor or manager who is responsible for taking a
prohibited personnel action. Thus, if abuses occur, that
office should have the opportunity to investigate and seek
corrective action.
Therefore, as previously stated, the Office of Personnel
Management strongly supports the goals of H.R. 24. As applied
in the federal personnel area, this type of legislation will
enhance the government's ability to function efficiently.
Additionally, such legislation will not dilute the
constitutional rights of federal employees. If amended as
suggested above, the Office of Personnel Management would
strongly recommend the enactment of H.R. 24.
The Office of Management and Budget has advised us that,
from the standpoint of the Administration's program, there is
no objection to the submission of this report.
Sincerely,
Donald O. Devine
Director
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