LETTER TO JAMES N. FREY FROM STANLEY SPORKIN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300410014-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 14
• Publication Date: September 15, 1981
• Content Type: LETTER

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Approved For Release 2008/08/28: CIA-RDP86B00338R000300410014-1 r'
CLI' TRAL INTELLIGENCE AGENCY
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
l
OGC 81-07894
15 September 1981
This is in response to your Legislative Referral
Memorandum dated 3 September 1981 requesting the views of
the Central Intelligence Agency on a proposed Office of
Personnel Management letter to House Judiciary Committee
Chairman Peter W. Rodino, Jr., on H.R. 24, the Federal Tort
Claims Act Amendments. Although the Central Intelligence
Agency fully supports the goals of H.R. 24 as does OPM, we
strongly object to portions of OPM's proposed letter.
OPM recommends modification of H.R. 24 to provide that,
when a constitutional tort claim against the United States
based on an employee's conduct arising in a personnel
context results in a settlement or judgment against the
United States, the Attorney General must forward the matter
to the-Merit Systems Protection Board's Special Counsel for
investigative and disciplinary action with respect to the
federal employee involved. OPM proposes to add this require-
ment regarding the NSPB Special Counsel to the requirement
already contained in the Bill that, when a constitutional
tort claim results in a settlement or judgment, the Attorney
General must forward the matter to the head of the agency
whose employee was involved for such further administrative
or disciplinary action as may be appropriate. Since many
potential constitutional tort claims arising in a personnel
context, such as those which might arise from employee
terminations by the Director of Central Intelligence in
accordance with section 102(c) of the National Security Act
of 1947, as amended, involve personnel actions falling
wholly outside the MSPB Special Counsel's jurisdiction, the
OPm modification might be misinterpreted to expand the
Special Counsel's authority. Furthermore, the OP;?t
modification strikes at the heart of the solution reached
during the last Congress to the problems posed by the
cumbersome disciplinary proceedings contained in previous
versions of this legislation. The 96th Congress predecessor
to H.R. 24 would have established investigative and
disciplinary entities external to agencies to examine the
conduct of their personnel involved in constitutional tort
claims, and would have provided for judicial review of
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such examinations. The cumbersome disciplinary arrangements
prevented unified Executive Branch support for the legislation,
which died in subcommittee at the end of the 96th Congress.
As a result of extensive negotiation among Executive Branch
representatives and the staffs of the House Judiciary Committee
and the House Post Office and Civil Service Committee, S.R. 24
contains a streamlined disciplinary provision requiring the
Attorney General to forward cases settled or adjudged against
the United States to the head of the agency whose employee was
involved for appropriate disciplinary action. The OPM
suggested modification would reopen the issue of disciplinary
provisions with very little, if any, potential benefit, at the
quite possible cost of deferring enactment of this much needed
legislation for yet another Congress. For these reasons, the
Central Intelligence Agency must object strongly to OPM's
proposal of the modification regarding the MSPB Special
Counsel.
With respect to OPM's descriptions of the need for
legislation due to the debilitating effects on personnel man-
agement of constitutional tort suits and OPM's recommendation
that the United States be permitted to avail itself of its
employee's good faith in defending a constitutional tort claim,
the Central Intelligence Agency completely agrees with OPM.
We note, however, that the Justice Department has prepared for
the House Judiciary Committee a comprehensive report on H.R_ 24,
currently undergoing interagency coordination, to which OPN
may wish to make some reference in its letter.
We appreciate the opportunity to provide our views on the
OPM proposed letter.
OGC:DSA:es (15 September 1981)
Distribution
1 - General Counsel
1 - C
1 - OGC)
1 - (OGC)
1 - jizvt er
1 - LED File: Tort Claims Act Amendments
1 - 0GC Chrono
Stanley Sporkin
7N
STAT
STAT
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