STATEMENT BY FLEOA GENERAL COUNSEL BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENT RELATIONS OF THE U.S. HOUSE OF REPRESENTATIVES ON REVISIONS TO THE FEDERAL TORT CLAIMS ACT AS STATED IN H.R. 595

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300420007-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 7
• Publication Date: April 28, 1983
• Content Type: REPORT

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Federal Law Enforcement
Officers Association
170 Old Country Road - Suite 310
Mineola, N.Y. 11501
[phone]
STATEMENT BY FLEOA GENERAL COUNSEL
BEFORE THE
SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERNMENT RELATIONS
OF THE U.S. HOUSE OF REPRESENTATIVES
ON REVISIONS TO
THE FEDERAL TORT CLAIMS ACT AS STATED
IN H.R.595
ON
APRIL 28, 1983 AT 9:00 AM
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On behalf of the Federal Law Enforcement Officers
Association I would like to thank the Subcommittee on
Administrative Law and Government Relations for the
opportunity to comment on proposed ammendments to the
Federal Tort Claims Act -- H.R.595. While official
agencies of the government can provide ample testimony on
unintended side-effects of Bivens-type suits, the Federal
Law Enforcement Officers Association is in a most unique
position to describe for you the personal and professional
hardships that frivolous and malicious suits have had on
the federal law enforcement officers and criminal
investigators for whom we provide legal asistance.
The ill-effects of these cases cross all agency
boundaries. We have handled these matters for FLEOA
members from the Federal Bureau of Investigation, Internal
Revenue Service, Immigration and Naturalization Service,
Bureau of Alcohol, Tobacco and Firearms, Drug Enforcment
Administration and Customs. The length of time and the
dollars needed to fight these spurious suits are
extensive, and the amounts at stake are immense. No doubt
this alone has produced an air of excessive caution on the
part of individual agents performing enforcement functions.
While no one in good conscience could argue for the "bad
old days" pre-Bevins v. Six Unknown Narcotics Agents, fine
tuning the Federal Tort Claims Act is a must or:
1. Personal liability will further hamstring
the already declining number of federal
enforcement officers and criminal
investigators in the conduct of their sworn
duties.
2. Budget and manpower cuts may continue to
produce suits and/or damages whose costs
exceed savings realized by manpower layoffs.
For, overworked enforcement officers and
other federal employees are inclined to make
errors for which they find themselves held
personally accountable -- e.g. State Marine
Lines v. Shultz (498 F.2nd 1146, 4th Cir.
1974).
3. The public will continue to view the federal
justice system as some stumbling giant
unable to get out of its own way, unable to
prevent its own victimization or the
victimization of those who do its bidding.
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We believe some of the answers to this dilemma lay in H.R.
595. We would like to suggest others. The "qualified
immunity" for enforcement officers and criminal
investigators who undertake "good faith acts" in the
performance of their official duties should be provided.
We feel existing sanctions, agency disciplinary
procedures, and court sought injunctive relief all more
than adequately permit the protection of individuals who
suffer violations of their individual and constitutional
rights. We also feel the government should be substituted
for individual defendants in all common law and
constitutional tort suits arising out of actions or
omissions of federal officers "acting within the scope of
their office or employment."
In the years since 1971, thousands upon thousands of
Bivens-type suits have been brought. But, as of April,
1982, only 13 resulted in judgments against government
employees. This point was brought out by the Society of
Former Agents of the Federal Bureau of Investigations in
materials they made public when Senate Bill 1775 was under
study. The court designed Bivens-type suits to insure that
individuals had a means to recover damages from federal
employees who violated their constitutional rights. It
was to serve as a deterrent to further unconstitutional
actions. Neither now, nor when decided in 1971, was it
intended to subject federal employees to the threat of
financial ruin. But, reality and intent do not always run
parallel. The law as it currently exists allows our
federal law enforcement officers to be threatened with
financial uncertainty for interminable periods of time.
It cripples their ability to plan ahead for their
families, for their children's education, for their
retirement. Misuse of the provisions of the Federal Tort
Claims Act inflicts on government employees the same
massive damage as negligent, violent, or willful
violations of constitutional rights inflicts on any
citizen. If the damage balanced itself out there might be
some justification for the psychic, professional and
economic carnage caused, but they do not. The Bivens-type
cases overwhelmingly have made government, federal
employees and the U.S. judicial system the victim.
How can this victimization be brought to an end? FLEOA
believes H.R. 595 with minor modification would go a long
way toward achieving that goal. The modifications we
suggest are these:
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1. The Justice Department must make a rapid
determination of "scope of office or
employment" for individual enforcement
officers and criminal investigators to
benefit from the coverage offered by H.R.
595. For that reason, a 30 day period,
maximum, should be allowed for
certification. This 30-day period should
begin the moment the employee's agency is
notified that a suit has been brought. A
failure to act within the specified time
frame should result in automatic
certification.
2. Individual enforcement agencies of the
federal goverment should indemnify their
enforcement employees under the Federal Tort
Claims Act for intervention in state felony
crimes committed in their presence. In
essence, provide "Peace Officer" coverage in
all states except those where they are
specifically requested by the individal
state not to provide such coverage.
3. And, the Attorney General and various
agencies should be required to provide to
the employee in any subsequent
administrative inquiries or disciplinary
actions all materials relied upon in making
the settlement determination and used as a
basis for such recommendations. The intent
of this provision is to free federal
enforcement officers from attempting to
defend their actions in nuisance suits
strictly on the basis of a "good faith"
contention rather than specific facts.
I believe the cases and illustrations, which we will now
provide, offer ample examples of the need for H.R. 595, of
the need for our suggested changes, and indeed, of the
problems federal enforcement officers and our justice
system face.
FLEOA's first extensive contact with the problems of
Bivens-type suits was encountered with lawsuits stemming
from Clavir, et al v. U.S., et al, 76 Civ. 1071. This
lawsuit began in March, 1976, and involved 10 named and
various unnamed federal agents in addition to supervisory
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personnel. The Department of Justice only authorized
representation for Edward H. Levi, Clarence M. Kelly,
Griffin B. Bell, and William H. Webster. Throughout the
litigation, which finally ended on September 9, 1982, with
a stipulation of Dismissal, FLEOA represented the
individual agents who were sued both as federal
enforcement officers and as individuals. For six years
our members were required to continue performing their
duties with the "Sword of Democlese" hanging over their
heads. Their focus on law enforcement, of necessity, had
to be replaced by focusing on survival. Unlike senior
Justice Department officials who had benefit of government
counsel, our members had to defend themselves in a major
lawsuit without the backing of their agency.
In yet a second case, a Drug Enforcement Administration
special agent driving a government car was involved in an
accident with a disabled vehicle. In this action, which
began on or about July, 1981, the goverment alleged the
agent was not acting within the scope of his employment.
Although they eventually withdrew their contestation of
the fact that the agent was acting within the scope of his
official duty, they did so only in June, 1982, long after
the agent was compelled to retain outside counsel and
defend his lawsuit throughout the year.
These are not isolated incidents, either. At present,
FLEOA represents enforcement officers and criminal
investigators, either solely or on an amicus basis with
the U.S. Attorneys offices, in the Immigration and
Naturalization Service, Customs,the Federal Bureau of
Investigation, the Internal Revenue Service and the Bureau
of Alcohol, Tobacco and Firearms. These cases serve to
illustrate another problem. The time between presentation
of the complaint and a determination by the Justice
Department on whether or not it will represent the officer
is seemingly infinite. Nevertheless, the time in which
the individual enforcement officer has to reply is quite
finite, usually within 60 days. What makes these time
constraints even worse is the fact that agents may not be
served personally, but rather their agency is served. If
an enforcement officer has been transferred, he has no way
of insuring the processing of his request for defense is
going through proper channels, nor of even responding
himself within the 60-day time frame. Even assuming that
he/she has an opportunity to make a request for
representation at the outset, the administrative process
frequently does not advise him if he is being represented
until the eleventh hour. The trauma this causes does not
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just effect the enforcement officer, but all other agents
and enforcement officers who watch their colleague left to
swing in the wind. We have had this problem recently in
cases involving two agents in the U.S. Secret Service, six
agents in Immigration and Naturalization Service, and an
agent in the Bureau of Alcohol, Tobacco and Firearms.
Lets now examine the claims and damages demanded in a
typical lawsuit. In one case involving six Immigration
and Naturalization Service officers, the plaintiff and his
wife demanded the following:
1. false imprisonment and arrest
2. punitive on (1)
3. assault and battery
4. punitive for (3)
5. malicious and criminal
prosecution
6 punitive on (5)
7. negligence in hiring
agents
8. loss of consortium
for wife
9. theft of jewwlry
10. libel, malicious
prosecution and violation
of civil rights
11. punitive for (10)
500,000.00
500,000.00
2,000,000.00
1,000,000.00
500,000.00
500,000.00
2,000,000.00
1,000,000.00
10,000.00
250,000.00
250,000.00
8,510,000.00
If you are staggered by these figures, can you imagine how
the enforcement officers feels when served with such a
lawsuit? Then, to add the further burden of not assuring
them that they will be represented by counsel, is simply
unconscionable.
As for coverage of federal enforcement officers who
intervene in state felony crimes committed in their
presence, we strongly support certification for these
individuals also. Almost every agency, whose personnel
carry firearms, have arrest powers, and are sworn officers
of the federal government, places upon its enforcement
officers the burden of responding in such situations.
However, many states have not yet conferred "Peace
Officer" status on these people. This places the federal
law enforcement officer in a "Catch 22." He or she is
both mandated to respond, and bound to do so at their own
personal risk. In this time of spurious and baseless
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lawsuits against law enforcement officials such situations
ask officers not only to jeopardize themselves and their
jobs, but their families as well.
Moreover, when the enforcement officer responds in such a
situation, they are required to appear before state
investigatory bodies such as the police department, the
district attorney's office, or grand juries. During this
time, they not only have no representation from the
Department of Justice, but no consultation rights so that
they may be advised of the very basic constitutional
protections to which they are entitled.
We are encouraged by the language of the proposed
amendment which we feel affords to the enforcement officer
the protection they deserve. To this we would only suggest
two additions:
1. That the proposed amendment be further
modified to include the following language
under 28 U.S.C 2679 D3, Page 3 Line 19 and
28 U.S.C. 2699 D3, Page 16, Line 16. ".
The certification of the Attorney General
shall conclusively establish scope of office
or employment for purposes of such removal
and shall be made within 30 days of the time
the employee's agency is notified of the
action. Failure to so notify shall result
in automatic certification."
2. The second modification we would propose is
to add to 28 U.S.C. 2700 a provision
entitling the employee in any subsequent
administrative inquiry or disciplinary
action access to all of the material relied
upon by the Attorney General or the agency
in making a settlement and the basis on
which such settlement was recommended. The
reason for this is to afford the employee
sufficient information to defend himself on
all of the facts and circumstances rather
than limiting him only to a defense based on
"his reasonable good faith belief in the
lawfulness of his conduct."
We in FLEOA have taken up the gauntlet and initiated
countersuits in the nature of malicious prosecutions
hoping to achieve a financial remedy for our enforcement
officers and a sizeable deterrent effect as well. In
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fact, an FBI agent we represent was recently awarded a
substantial sum in damages plus treble damages as a
punitive damage award. It will be years, however, until
this case comes to a conclusion since we must enforce the
judgement. It will also be years before the life of that
agent and his family can hope to move back towards
normalcy.
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