STATEMENT OF G. JERRY SHAW GENERAL COUNSEL BEFORE THE ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE ON HR-595

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300420011-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 11
• Publication Date: April 28, 1983
• Content Type: REPORT

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STATEMENT OF
G. JERRY SHAW
GENERAL COUNSEL
Before the
ADMINISTRATIVE LAW AND GOVERNMENTAL
RELATIONS SUBCOMMITTEE
OF THE
HOUSE JUDICIARY COMMITTEE
APRIL 28, 1983
P.O. BOX 7610 ? BEN FRANKLIN STATION ? WASHINGTON. D.C. 20044
[phone]
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Good morning. My name is Jerry Shaw. I am General Counsel
of the Senior Executives Association (SEA), a voluntary, profes-
sional organization that speaks on behalf of career members of
the Senior Executive Service (SES) and supergrade executives.
I appreciate the opportunity to appear before this subcom-
mittee to support HR-595. Such legislation would be advantageous
for all. A deserving plaintiff would have a liberalized basis for
recovery from the United States The Federal Government would
benefit financially by no longer having to spend money to retain
private counsel to represent federal employees in certain suits,
and by substantially reducing the amount of administrative and
legal staff time utilized to assist employees and the Government
in these cases. And federal employees acting within the scope of
their employment would no longer be subjected to the intimidation
or harassment by lawsuits which could ruin them financially. It is
this last part upon which we shall concentrate.
The federal executive today is beset by numerous obstacles in
performing effectively the work of the public service. We have
appeared before several other committees of both Houses on a host
of issues that impinge on the daily management of the Government's
programs. Yet, we know of no issue which strikes more viciously
at the morale of federal managers and executives than the knowledge
that they may be personally sued for actiosn performed within the
scope of their employment. Those suits may be as serious as viola-
tions alleged in areas where the law is unclear, or they may be
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as trivial as allegations solely for the purpose of harassing a
public manager. The fact that many thousands of government
employees have been defendants in constitutional tort actions
since 1971 and only .2 handful have ended in money judgments
against the individual employee defendant suggests that most
cases are marked by such trivial qualities. The knowledge that
your employer, the Government, may have to disassociate itself
from assisting you can considerably alter the enthusiasm one
has for management.
There are those who argue that such threats are necessary
to produce a chilling effect on the arbitrariness of otherwise
unchecked government administrators. We suggest that the evidence
of such arbitrariness is extremely rare, that other administrative
procedures exist to correct and punish such caprice and that the
present laws result not in prudent management but in supine federal
administration whenever the law is unclear or subject to interpre-
tation. As you are aware, Congress expects that agencies be ruled
by its intent as well as by its laws. Such opportunity for in-
terpretation produces ares of uncertainty that still require
executives to act.
We reject any suggestion that the possibility of suit against
individual federal employees personally is necessary or desirable as
a guard against improper action by federal employees. We know, for
example, of no evidence that drivers of federal vehicles have become
more accident-prone since they received statutory immunity in 1961,
or that various categories of federally-employed medical personnel
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became less dedicated or less able after various statutes
passed in 1965, 1970, and 1976 provided immunity to them.
There are adequate existing controls on the acts of
federal employees, without needing the threat of a personal
lawsuit. We believe that to almost all federal employees the
accountability to supervisors which governs assignments, evalua-
tion and promotion is the most direct type of control. In
addition, we cannot over-emphasize the fact that the activity
of the many federal employees for whom we speak is governed by
their respective codes of professional conduct and their general
professionalism and ethics. It must also be remembered that
although the proposed legislation would immunize the individual,
a lawsuit against the U.S. based upon an employee's conduct would
nevertheles directly bring into question the activity of that in-
dividual. Such a lawsuit would thus involve the reputation of
the employee whose conduct was questioned.
The necessity for this legislation cannot be played down by
rhetoric. The proposal is not in any way an over-reaction. At
present, approximately 2,200 lawsuits are pending against federal
officials in their individual capacities, 75% of these lawsuits
involve multiple defendants, some as many as 30 or 40. Between
7,500-10,000 government employees are involved. The issue that
should be addressed is whether thousands of federal employees
and their families should be put through the ordeal of suit, the
accompanying worry and the possibility of financial ruin so that
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the rare federal employee who, in the minds of some, may deserve
to pay personally will not escape. We submit that this is far
too high a price to pay. We have been informally advised that
in some agencies these has been a 20% increase in such suits within
the past year.
We are aware of the differences of opinion between some
citizen groups and the United States on what the proposed
liability of the United States should be under ? 2693 of the Act.
The very recent Supreme Court decision concerning the imposition
of punitive damages on a prison guard has again heightened the
concern of many federal employees about their individual exposure
to lawsuits. We seriously wonder if a compromise position on
? 2693 would not be in the best interests of the Government and
the citizen groups.
We request that consideration be given to establishing a
class of de minimus violations for which no monetary damages
would be available a plaintiff. An example of this type of case
might be on a motion to suppress in a criminal matter wherein
because of a technical violation the motion was granted. Few
citizens of this country would wish to see the government paying
an individual for a technical violation of his or her constitutional
rights while they are on their way to jail for criminal activity.
The other extreme is when an employee or the government
might be liable for punitive or compensatory as well as actual
damages. Obviously in that kind of situation the government
would have to raise as a defense the good faith of the employee
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and the good faith of the government in seeking to defend its
actions. So it is absolutely necessary that the good faith
defense be available in those cases.
The middle- ground then concerns violations of an individual's
constitutional rights which are of a serious nature, and which
cause actual damage. One manner of dealing with this might be
by allowing a plaintiff to prove that negligence of the government
through-its employees was the cause of his or her actual damages,
and thus collect the actual damages which the individual incurred.
This would rule out the liquidated damages provision presently in
? 2693, and would minimize the number of suits brought. It might
be possible, however, to establish a guideline for the courts in
determining what the actual damages might be for a violation of a
constitutional right which actually damaged a citizen's physical
and mental well being, or reputation in the community, etc.
We make these recommendations not in the belief that the
government or citizen organizations' positions are either right
or wrong, but merely in the hope that a compromise can be reached
which would allow passage of this legislation and provide protection
to government employees. We recognize that some are concerned that
the failure of the government to assert the "good faith" defense
would prejudice an employee's rights in subsequent disciplinary
proceedings. We share that fear. We would, therefore, request
that unless the good faith defense is retained in all cases by the
government, that a specific provision be added in ? 2700 of the bill
which would clearly state that any finding in a constitutional tort
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case against the government could not be used for the purpose -
of determining what action should or should not be taken
against a government employee, nor would there be any presump-
tion that a finding-on behalf of a plaintiff against the govern-
ment meant that an employee had in any way done anything wrong
or failed to properly perform his or her duties.
We oppose ? 2695 which would provide for a jury trial. This
is especially true if our proposals on ? 2693 are adopted, since
the same standard would be applied in most constitutional tort
cases as in other tort cases involving the federal government.
We believe that ordinary tort concepts of negligence in state laws
should prevail on determining whether or not negligence was present
in constitutional tort cases, the same as in other tort cases under
the Federal Tort Claims Act. We believe that these cases should
be tried before federal district court judges, not before juries.
As we have previously testified, we oppose the awarding of
attorney's fees in these cases.
We also favor the elimination of most of ? 2680 exceptions in
constitutional 'tort cases. The suggested amendment protects federal
employees from the possibility that a court would permit a suit
against an individual employee if the suit against the U.S. were
barred by one of those exceptions.
In closing, the career senior executives of the U.S. Government
have, in our estimation, provided the American people a calibre of
administration that is and should be the envy of any government in
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the world. They take seriously the charge of administering the
laws of this land as equitably and efficiently as possible. They
bring to those jobs enormous training and experience and the repu-
tations of a lifetinte of public service. They entered the profes-
sion of senior executive in part in hope that at long last they
would be accorded the visibility and respect that their perfor-
mance merited. But they live each day with the denigration of
their worth -- whether it be in limitations on pay, or in ex-
posure to possible suits for actions performed within the scope
of their employment. One does not have to look far to find evi-
dence that even the most dedicated public employees are finding
such conditions intolerable. This bill is really one very es-
sential piece of a larger set of legislation needed to restore
the effectiveness and morale of the public employees on which you
depend to implement the laws you pass.
I shall be pleased to answer any questions the Subcommittee
may have.
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