FEDERAL EMPLOYEES LIABILITY REFORM AND TORT COMPENSATION ACT OF 1988, H.R. 4358

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R000200070018-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 27, 2016
• Document Release Date: August 21, 2012
• Sequence Number: 18
• Publication Date: May 5, 1988
• Content Type: MEMO

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5 Mav 1988
OCA ?s8-1432
NEMORAI~'DUt, FOR THE RECORD
SUBJECT: Federal Emplc~ees Liability R ~crm and Tort
Compensation Act of 1988, ~i. 4358 ,t
1. Or. 5 P.ay 1988, I spoke with Janet Potts, counsel on the
Administrative Law Subcommittee of the House Judiciary
Committee, with respect to changing the language "common la~~-
tort" to "state law tort" in the findings and purposes section
cf the above-captioned bill. I had informed her previously
that the Agency believed this change would bring the bill mare
in line with the ~~?estfall v. Erwin decision and clarify the
scope cf ttie law. a so to er that I thought the
Department cf Justice (DOJ) was on board with such a change in
general, but perhaps had not placed it in the bill because of
time constraints. She stated that she had been trying to reach
DOJ to discuss the change, but had been unsuccessful.
2. I then telephoned Faith Burton of DOJ to discuss the
proposed change with her. She said that DCJ wculd not agree to
it because it may brcaden tl-~e scope of the law to cover strange
statutory torts. She also expressed her dissatisfaction with
cur having dealt directly with the Judiciary subcommittee
without first clearing it with them. I told her I thought they
hac said they would agree to this change at a previous meeting
ar.d, because cf time constraints, I had dealt directly with
Ms. Fotts after the subcommittee ffarkup. I further explained
tY:at the Agency was not trvirg tc get ahead of DOJ en this
issue and that if we were I would not have telepl--ioned her to
chec}~ cn L'UJ's agreement with the change. I apologized if this
caused a prcbler: anc said I would tell ~.s. Fotts that we were
no longer pursuing t~~e cr~ange. Ms. Burton continued tc s~~ow
concern that this may beccr.:e a matter that would place the
Administration in a bad lig,2-:t. I told her I did not think that
was the case at all.
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3. I then sF~oke with rie. Potts to tell her that, since
tY.is was not an intelligence issue per se, although the Agency
may in all likelihood have more employees sued than. most ether
agencies because of the nature of its work and because of
public perceptions, we ~~ere not gcing to pursue this change. I
explained tt,at there was some misunderstanding with DOJ about
this. She seemed satisfied with the explanation. cf DOJ's fear
of brcader.ing the scope cf liability and said she would speat:
STAT
with Ns. Burton.
egislation Divis
Office of Congressional Affairs
STAT
STAT
OCA/LEd (S May 1988)
Distributicn:
Original - OCA/Leg/Subject File: Miscellaneous Personnel
1 - OCA/Leg/Subject File: Legislation General
1 - D/ OCA
1 - C/ICA/OGC
1 -
1 - DrL CCA
1 - OCA Registry
1 - F:H Signer
1 - OCA Read
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100TII CONGRESS ~ ~ ~3~8
2D SFS~IO'~
? ?
To amend title 2R, United States Code, to pro~~ide for an eaclusi~~e remed~?
against the I'nited States for suits based upon certain negligent or ~~rongful
acts or omissions of t'nited States emplo~~ees comrrlitted ?-ithin the scope of
their emplo~-Inent, and for other purposes.
IN THE HOUSE OF REPRE,SENTATI~TES
Dir. Fx:~~.s (for himself, Dlr. Flsx, Dlr. Sna?~. and Dlr. ~~~o1J>;) introduced the
follo~~~ing bill; ?~hich ??~~~ referred to the Committee on the Tudiciar~~
A BILL
To amend title 28, United States Code, to pro~-ide for an
exclusi~~e remed~~ against the United States far suits based
upon certain negligent or ~~-rongful acts or omissions of
United States emploti-ees committed ~~ithin the scope of
their emplo~-ment, and for other purposes.
1 Be it enacted by the Senate and House of I~epresenta-
2 tines of the Unitea' States of Ameriea in Congress asse~~tbled,
3 SECTION 1. SHORT TITLE.
4 This pct may he cited as the "Federal Emplo~-ees
5 Liability- Reform and Tort Compensation pct of 1 J88".
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2
1 SEC. 2. FINDINGS AND PLRPOSF,S.
2 (a) FINDINGS.-The Congress finds and declares the
3 folio?-ing:
4 (1) For more than 40 rears the Federal Tort
5 Claims Act has been the. legal mechanism for compen-
6 sating persons injured b~~ negligent or ?~rongful acts of
7 Federal emplo~~ees committed ~~-ithin the scope of their
8 emplo~?ment.
9 (~) The United States, through the Federal Tort
10 Claims act; is responsible to injured persons for the
11 common la~i- torts of its emplo~~ees in the same manner
12 in ?-hich the common la~i~ historicall~~ has recognized
13 the responsibilit~~ of an emplo~~er for torts committed
14 b~- its emplo~?ees ~~-ithin the scope of thou emplo~~ment.
15 (3) Because Fe~de~ral emplo~`ees for mangy- rears
16 ha~-e been protected from personal common la~~` tort li-
17 a~bilit~~ b~- a broad based immunitti-, the Federal Tort
18 Claims Act has ser~~ed as the sole meads for compen-
19 sating persons injured b~~ the tortiaus conduct of
20 Federal emplo~?ees.
21 (4) The Federal Tort Claims Act has ?`orked ?~ell
2? o~-er the past four decades in pro~-iding fair and e~pedi-
23 tious compensation to persons in~urecl b~~ the camn~on
24 la?~ torus of Federal emplc~~-ees.
~~r.? t7,} 1lE'~``-'ilt }~kf~i(_`1"zi df't.'1`lt.t1`, a?~(.~ p~rilf..'?Eiri~~ l"If`
~~(i ~f'C'I~1C?Ii Jf tllE' ti.~f'ls ~`ia?f'. ~izi!'"E'iIif ~vC~u?'i ;~,: ~~ f'~?
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.she
ed
3
1 fall ~-. Er?~in, ha~~e seriousl~~ eroded the common
2 la?~ tort immunit~? pre~-iousl~~ a~~ailahle to Federal
3 emplo~~ees.
4 (6) This erosion of immunit~~ of Federal emplo~-ees
5 from common la~~- tort liabilit~~ has created an immedi-
6 ate crisis in~-ol~-ing the prospect of personal liabilit~-
i and the threat of protracted personal tort litigation for
8 the entire Federal ?-orkforce.
9 (r) The prospect of such liabilit~~ ?-ill seriously- un-
10 dermine the morale and Drell being of Federal emplo~~-
11 ees, impede the ahilit~- of agencies to carr~~ out their
12 missions, and diminish the ~-italit~' of the Federal Tort
13 Claims Act as the proper remedy- for Federal emplo~-ee
14 torts.
1 ~ (8) In its opinion in ~'~'estfall ~-. Er~rin, the Su-
16 preme Court indicated that the Congress is in the best
17 position to determine the extent to ?~hich Federal em-
18 plo~-ees should be personally- lia}ale for common la~l-
19 torts, and that legislati~-e consideration of this matter
20 ~rot~ld be useful.
?1 (~) The Congress, as a result of specific pres~i~,r?
liahilit~- ccmcerns, already- has made the Federal Tort
'?3 Claims het the e~clusiti-e remedy- for drib-erg, medical
`'-f personnel, and militar~~ attorney-~ en~t~l~~~~e~l 1~,~- t?,~~
~~;) ~ sited ~Ta'e.. ~~ht'~E' ~~I'(~~'t ,~_~'~. h~i~~t' (1j~t'~ .r: ,r
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4
1 and protected the interests of the Federal Government
2 while providing compensation to persons injured b~~
3 such emplo~?ees.
4 (b) PURPOSE.-It is the purpose of this Act to protect
5 Federal employees from personal liability for common la?~
6 torts committed ?-ithin the scope of their emplo?nent, ~;~hile
7 providing persons injured b~- the common la~ti- torts of Federal
8 emplo~~ees with an appropriate remedy against the united
9 States.
lU SEC. 3. JUDICIAL AND LEGISLATIVE BRA'.VCH EMPLOS-EES.
11 Section 2671 of title ?8, United States Code, is amend-
12 ed in the first full paragraph b~- inserting after "executive
13 departments," the following: "the judicial and legislative
14 branches,".
l~ SEC. 4. RETENTION OF DEFENSES.
I6 Section 2674 of title ?8, united States Code, is amend-
1 i ed b~~ adding at the end of the section the folio?~ng ne?~
I ~? paragraph:
1R "The United States shall be entitled to all defenses oth-
2~ er?-ise available to an emplo~~ee of the united States, inelud-
`~1 ing but not limi?ed to Presidential, judicial, prosecutorial, and
2? legislative immunity and any other in~znunity reco~,rnized b~~
2.'; State or Federal la?-s a~ ~~~~e11 as defenses to ~~-hich the
~'-~ 1'n~ted StatFS indepe~~dently is entitled.".
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t
1 SEC. 5. EXCLUSIVENESS OF REMEDY.
2 Section 2679(b) of title 28, United States Code, is
3 amended to read as follows:
4 "(b}(1) The rerned~~ against the United States prodded
5 by sections 1346(b) and 26 i 2 of this title for injure or loss of
6 propert~~, or personal injury- or death arising or resulting from
7 the negligent or ?-rong~ful act or omission of any emploi~ee of
8 the Government while acting within the scope of his office or
9 emplo~~ment is exclusive of any other civil action or procee~d-
10 ing b~- reason of the. same subject matter against the
11 emplo~~ee~ or his estate whose act or omission gave rise to the
I2 claim. r1n~' other civil action or proceeding arising out of or
13 relating to the same subject matter against the emplo~~ee or
14 his estate is precluded without regard to when the act or
l~ omission occurred.
16 "(?) Paragraph (1) does not extend or apple to a cogni-
1~~ zable action against an emplo~-ee of the Government for
l~ money damages for a violation of the Constitution of the
19 L'~~nited States."
2t~ SF.C. 6. REYRESE~TATION AXli RE'F10~`_~I..
''1 Section `?Gi9(dl of title `?S, t'Irited States Codf>, is
`'2 amended to read as follows:
~`~ "(d141> l'pon certific~stiol~ 1~v the _~tiorIlet' GeT;er~,~ th