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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(03/01/1983-03/13/1983)
Box: 53
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To see all Ronald Reagan Presidential Library inventories visit:
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MEMORANDUM
THE WHITE HOUSE
WASHINGTON
March 1, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 232
SUBJECT:
Testimony of William J. Olivanti, Special
Agent in Charge, DEA Chicago Field Office
The Department of Justice has submitted the above-referenced
testimony, scheduled to be delivered on March 4 before the
Senate Permanent Subcommittee on Investigations. The
testimony reviews examples of involvement of the Chicago
Syndicate in narcotics trafficking. Olivanti states that
the Syndicate is typically not directly involved in
narcotics sales, but issues "juice loans" to facilitate
large-scale transactions and assesses an "area tax" for the
right to deal narcotics in given areas. The testimony also
discusses six specific cases of Syndicate involvement. I
see no legal objection.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O . OUTGOING
H . INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
William J Olivanti
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Statement on Organized Crime
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
w Holland
ORIGINATOR 83,03,01
Referral Note:
WAT 18
A 830301
583,03104
Referrat Note:
Referral Note:
/
/
/-
Referral Note:
/
k
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C . Comment/Recommendation
R. Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D . . Draft Response
S For Signature
F . Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE
Type of Response = Initials of Signer
Code
"A"
Completion Date #; Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
DRAFT
STATEMENT OF
WILLIAM J. OLIVANTI, SPECIAL AGENT IN CHARGE
CHICAGO FIELD DIVISION
DRUG ENFORCEMENT ADMINISTRATION
U.S. DEPARTMENT OF JUSTICE
ON
ORGANIZED CRIME
FOR THE RECORD OF THE
COMMITTEE ON GOVERNMENTAL AFFAIRS
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
UNITED STATES SENATE
WILLIAM V. ROTH, JR., CHAIRMAN
MARCH 4, 1983
Chairman Roth and members of the Subcommittee:
I am pleased to submit for the record an overview of Chicago
traditional organized crime as it relates to narcotics
trafficking.
For at least the past two decades, certain elements of Organized
Crime in Chicago have been involved in the trafficking and
distribution of narcotics. However, Organized Crime in its
popularly conceived image did not control narcotics trafficking,
which was, and still is, in the hands of various ethnic groups
normally identified with the type of drugs trafficked. For
example, the trafficking of brown heroin has been controlled by
Mexican violators and white heroin by various ethnic groups.
Dating back to the 1960's, Syndicate involvement was primarily in
the area of importation of white heroin through well-established
distribution networks between the United States and Europe,
principally Italy and France.
From this period to the present, the actual sale of narcotics,
again primarily white heroin, involving the Syndicate was
accomplished by fringe associates, but was not a policy of
the upper echelon Syndicate members. It would be fair to say
that in some cases tacit approval was given for the sale of
narcotics by upper echelon members, but no apparent concerted
effort was made by the Syndicate to either control narcotics
sales or to involve itself in the purchase of large quantities of
narcotics for sale and distribution.
Recent investigations have revealed that Syndicate. figures are
involved in the financing of narcotics through the issuing of
extortionate loans, commonly referred to as "juice loans."
Another ploy used by the Syndicate to realize profits from
narcotics sales is the "area tax," through which upper echelon
Syndicate members receive payment for the right to sell narcotics
in a specific area; however, this is an indirect connection to
narcotics sales, affecting only those fringe elements previously
discussed. In effect, the sale of narcotics by certain
individuals under this system would be financially beneficial to
the Syndicate in the same way as other illegal activities like
gambling, prostitution, and extortionate credit.
The following overview outlines Organized Crime involvement in
drug trafficking and highlights investigations involving
Organized Crime figures. In addition, the financing of drug
purchases and Syndicate involvement in the area tax is
addressed.
NARCOTICS AND EXTORTIONATE CREDIT LOANS (JUICE)
Commencing in August, 1980, DEA initiated an extensive probe to
determine Organized Crime's (Chicago Syndicate) involvement in
the financing of narcotics through extortionate credit loans.
This was initiated through an undercover probe. Since that time,
1
selected approaches have been made, and in each instance, the
facts as noted below are still considered current and represent
the Chicago Syndicate's policy toward furnishing loans for
narcotics.
In every instance, the individual contacted showed no hesitation
in discussing a "juice" loan even when the word narcotics or
various colloquial expressions such as "dope," stuff," etc. were
used in reply to "what's the loan for?" It was made clear that
there would be "extra points" added to the loan since it was to
be used for narcotics. As in a loan through a bank, the borrower
was required to furnish a home address and a list of his/her
closest relative such as a mother or father so as often repeated,
"somebody we can contact in case there's problems."
It was found that if the money was to be used to establish or
refinance a narcotic organization then the understanding was the
same as any extortionate credit loan. Payment is made on the
interest only and usually on a weekly basis. The Syndicate makes
the decision as to when the principal can be paid off. On the
other hand, if it is a "one time loan," for example, a load of
narcotics, then the loan can be paid off at once, usually in a
week's time.
Summary
Contacts showed there was no hesitation in discussing a loan for
narcotics. In fact, in one instance when a mid-level Chicago
Syndicate figure was approached, he demonstrated current
knowledge of cocaine prices in Chicago in comparison to Florida.
_7_
He further advised the Undercover Agent that a loan could be
obtained for $100,000 and that the money would come out of
"Cicero.
"
Information continues to be received, practically on a routine
basis, from Cooperating Individuals and convicted narcotic
traffickers that all narcotic organizations are expected to pay
an "area tax" which eventually goes to the individual street
bosses. An example of this occurred when the late Butch
PETROCELLI approached Frank PEDOTE and advised him that the word
on the street was that he (PEDOTE) was big in narcotics. PEDOTE
took this to mean that he would be expected to pay a "tax" if he
wanted to keep selling heroin in Chicago.
REPRESENTATIVE CASES
Traditional Organized Crime and specifically the Chicago
Syndicate were quick to realize the profit potential in heroin
and were in an excellent position to obtain a reliable supply
through their New York City connections and overseas in France
and Italy. Since that time, the Syndicate has been actively
involved in selected instances in the distribution by sale,
financing, or approval of narcotics transactions to realize
significant profits. Therefore, it was only natural that as the
trafficking patterns changed, the Syndicate would move their
expertise and connections to another area which currently is
represented by another high profit controlled substance -
cocaine. Representative of the above are as follows:
AMERICO DePIETTO
Subject was arrested and convicted in 1964 for the sale of
narcotics. DePIETTO received a 20 year sentence and since his
release has become a close associate of Marshal Caifano. The
latter, a documented member of the Chicago Syndicate, was
convicted in Florida for receiving stolen securities and is
presently incarcerated.
MARY GUIDO and JOSEPH SKEVA
As noted under "OPERATION FLANKER," Louis Guido (husband of Mary
Guido) was convicted and received a 20 year sentence for the sale
of heroin. While in prison, he approached a DEA cooperating
individual and proposed the purchase of white heroin from the
cooperating individual by his wife Mary Guido and his brother-in-
law John Skeva. Both subsequently advanced $32,500 to the source
following which they were arrested and convicted for conspiracy.
NICK D'ANDREA
Along with demonstrating clearly the Syndicate's involvement in
drug trafficking, the D'Andrea case is of singular interest
because of the ususual violence connected with it. The Chicago
Syndicate has generally handled internal conflict quietly to
preclude enforcement and media attention; however, in this
instance, the power struggle on Chicago's south side culminated
in a number of murders including that of Nick D'Andrea.
The investigation began in 1980 when a DEA undercover agent met
with Nick D'Andrea. It was subsequently determined that he was
heavily involved in drug trafficking, primarily cocaine
trafficking. His organization distributed cocaine to dealers in
the south Chicago suburbs and Northern Indiana. Through
undercover negotiations, it was determined that the D'Andrea
Organization was distributing multi-kilo quantities of cocaine
which were obtained in Florida.
In September, 1981, Nick D'Andrea's body was discovered in the
trunk of his car. A month later, his brother Mario was shot and
killed by a DEA undercover agent during a cocaine transaction
when D'Andrea attempted to shoot the agent.
OPERATION FLANKER
This operation was initiated in 1970 to determine Organized
Crime's involvement in the distribution of narcotics. As a
result of this probe, substantive cases were made and indictments
were subsequently issued charging the following Organized Crime
members or associates with the sale of heroin, all of whom were
convicted and received substantial sentences:
CHRIS CARDI
ALEX MICELLI
JOSEPH CADUTO
LOUIS GUIDO
FRED CADUTO
FRANKLIN CARIOSCIA
JOSEPHINE CADUTO
MICHAEL CARIOSCIA
VIRGIL CIMMINO
To further document Organized Crime's involvement in narcotics
was the admission by Chris Cardi, who was a fully documented
Organized Crime figure, that the Chicago Syndicate was in fact
involved in narcotics. It should be noted that Cardi was the
victim of a gangland killing almost as soon as he was released
from prison.
ERNEST ROCCO INFELICE et al
Infelice is a member of the Chicago Syndicate and was convicted
on October 23, 1973 for the sale of heroin and conspiracy to
violate the Federal Narcotic Laws. Infelice along with his co-
defendants, Mario and Chester Garelli, were employed at McCORMICK
PLACE. During the development of this case, it was necessary for
the DEA coopérating individual to receive clearance before a
purchase of heroin could be made from the Garelli's. This
approval was given by Infelice in a DEA recorded conversation
which becamse a substantial portion of the case presented against
Infelice.
This case is of special importance as it represents the change
from white heroin associated with FRENCH CONNECTION sources to
brown heroin controlled by the HERRERA's. In 1982, DEA Chicago
has noted a revitalization of white heroin connection evidenced
by investigations currently not of public record.
SAM SARCINELLI
Organized Crime figure Sam Sarcinelli was convicted on
December 10, 1982 and sentenced in Florida to 8 years in prison
and 3 years special parole on count one, and 8 years in prison
and 3 months special parole on count two of an indictment
charging Sarcinelli with Possession and Conspiracy to distribute
narcotics. Sarcinelli headed a large-scale narcotic organization
capable of distributing multi-kilogram quantities of cocaine per
month.
I thank you for the opportunity to provide the Drug Enforcement
Administration's information regarding the subject of your
hearings, and for the continued interest and support of the
Subcommittee in our efforts against organized crime and illicit
narcotics trafficking.
8
THE WHITE HOUSE
WABHINGTON
March 3, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Testimony of William E. Hall
on the U.S. Marshals Service
The Department of Justice has submitted the above-referenced
testimony, to be delivered before the Subcommittee on
Courts, Civil Liberties, and the Administration of Justice
of the House Judiciary Committee. The testimony reviews the
work of the Marshals Service, discussing increased pro-
fessionalization through greater training, provision of
court security, the "Operation FIST" successes in appre-
hending fugitives, prisoner transportation and detention
during trial, benefits from Public Law 97-462 (relieving
Marshals Service of many civil process duties), and improve-
ments in the witness security program. I see no legal
objections to the proposed testimony.
ID #
CU
WHITE HOUSE
CORR ESPONDENCE TRACKING WORKSHEET
O OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
William E Hall
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Statement re: initratives of U.S.
marchals Service
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUltalland
ORIGINATOR
83/03/01
/
/
Referral Note:
WAT18
A 83103101
/
/
Referral Note:
/
/
/
/
-
Referral Note:
/ /
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R. Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D Draft Response
S. For Signature
F - Furnish Fact Sheet
X - Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
DRAFT
UNITED STATES MARSHALS SERVICE
DEPARTMENT OF JUSTICE
STATEMENT OF THE DIRECTOR
WILLIAM E. HALL
BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE ON
COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE
Mr. Chairman and Members of the Subcommittee:
I am pleased to have the opportunity to appear before the
subcommittee today and share with you some of the initiatives
undertaken by the U.S. Marshals Service since I last appeared
before you. I welcome this opportunity to bring you up to date on
the programs of the Service.
GENERAL STATEMENT
A major initiative was undertaken by the Service during 1982
to recompute the district staffing requirements based on the Work
Measurement System developed in 1980 by a joint task force of the
Department of Justice and the U.S. Marshals Service. These
staffing requirements reflect the operational and administrative
workload within each of the 94 judicial districts and focus on the
major programs of the Service.
The district personnel allocations which result from this
effort reflect the impact of the authorized personnel ceiling of
the Service for 1983. Overall, the operational personnel
allocations total 55% of the calculated staffing requirement. The
number of personnel available for allocation to the districts is
of extreme importance as the 94 United States Marshals and their
staffs are collectively responsible for accomplishing the primary
missions of the Service. Although at present we are operating
with less than the optimum number of personnel, the U.S. Marshals
Service expects to continue its effective operations to the
greatest extent possible and to expand upon the significant
program achievements to date.
A long range ADP plan has been developed to provide the
Service with the efficiency of computer technology. This fiscal
year eight pilot project sites will be established for programs
which will aid us in district accounting and local prisoner
population management.
TRAINING
In our effort to continue the professionalization of the
Service, approximately 21% of all personnel participated in some
type of organized training conducted by the Service. A basic
training school for 24 Enforcement Specialists was conducted in
January 1983 at Glynco, Georgia. This four-week class focused on
2
the skills required to effectively operate an ongoing fugitive
apprehension program at the district level. Additional regional
training seminars are scheduled for 1983, resources permitting.
In further efforts to improve program missions, the Marshals
Service has increased training for the Witness Security
Inspectors. During fiscal year 1982 a total of 82 class
participants received Basic Inspector and Personal Security
training as compared to 59 class participants receiving the
specialized training in 1981.
Training is scheduled during 1983 to increase Service
expertise in such areas as Jail Contracting and Inspections;
Security Countermeasures in Judicial Facilities; Judicial
Conferences and Group Security; Sequestered Juries; Security at
High Risk or Sensitive Trials; Hostage Negotiations; Counter-
terrorist Tactics; and Special Weaponry. The Protective Services
School which proved so successful during 1982 will be continued in
1983 to train Service personnel in advanced personal security and
protection skills.
COURT SECURITY
The primary mission of the U.S. Marshals Service has always
been the security of the Federal judiciary. To successfully
perform this mission, security policies, equipment and training
are continually being updated.
3
Enhancement of the security support program through the use
of state-of-the-art equipment allowed the Service to successfully
provide security for over 12,000 trials in 1982.
Included among these trials were such noteworthy cases as
the Edwin Wilson conspiracy trials in Eastern Virginia and
Southern Texas; the Croatian Terrorist trials in Southern New
York, and the highly volatile Outlaw Motorcycle Gang
narcotics/murder cases in Florida. When high media contact or
high profile trials such as these occur, Service personnel not
only provide court security and intelligence information, but also
arrange for the personal protection of threatened individuals
outside of the judicial proceedings.
During 1982 personal protection was provided on two separate
occasions to Supreme Court Justice Sandra Day O'Connor; the Chief
Justice was escorted during several national trips; and extensive
twenty-four hour protective details were conducted on numerous
Federal judges, prosecutors and trial participants.
The Service is currently developing its. new contract guard
program to provide better facility security for Federal court
buildings, along with implementing the recommendations of the
Attorney General's Joint Task Force on Court Security. These
efforts will greatly assist in providing increased security
support to the Federal judiciary.
4
EXECUTION OF WARRANTS
The Service continued to make an outstanding contribution to
the Administration's law enforcement effort by placing special
emphasis on the investigation and apprehension of those fugitives
with histories of violence, organized crime connections, or
narcotics associations. In 1982 the Service cleared 55 percent of
its primary fugitive cases, a total of 10,379. Some of the major
arrests in 1982 included international fugitive Edwin P. Wilson,
Kenneth Lloyd Pendleton, William Joseph Arico, and John Patrick
O'Shea.
In direct support of the Administration's drive against
violent crime, the Service developed the Fugitive Investigative
Strike Team concept, also referred to as FIST. This effort
focuses on major crime areas to apprehend a large number of
primary fugitives in a short period of time at a minimum of cost.
The success of the initial effort in Miami in October 1981
prompted FIST Operations in Los Angeles, New York, and Washington,
D.C. in 1982. These four operations have resulted in 1,095
physical apprehensions of fugitives who had previous arrests
totaling 6,753. Four hundred and seventy-six of these fugitives
were classified as armed and dangerous. The average cost per
fugitive apprehension was $973.57. Additionally, the District of
Colorado concluded in August 1982 a special ten-week fugitive
investigation operation conducted jointly with local law
enforcement agencies. It resulted in the arrest of 92 fugitives
5
sought in the Denver area. Operations such as those mentioned
illustrate the impact in reducing the criminal population at
large. More FIST operations are in the planning stage for 1983.
PRISONER TRANSPORTATION
The Service has continued to make progress in the
transportation of Federal prisoners. The number of prisoners
requiring interdistrict transportation has increased 53% in the
last three years, however, through improved management, the
average amount of Deputy U.S. Marshal time per prisoner has
declined. This has amounted to a savings of more than $2 million
over what it might have cost were improved scheduling and
transportation methods not implemented. Briefly, the savings have
been accomplished by the centralization of prisoner movement
controls and the establishment of a strong network of fixed air
routes with leased aircraft and low cost ground transportation.
This has substantially lessened the use of more expensive
commercial air flights. None of this would be possible without
the cooperation of the Federal judiciary, the U.S. Attorneys, and
other Federal bureaus in providing sufficient advance notice of
required movements so that prisoners can be moved at the least
cost to the government.
6
SUPPORT OF U.S. PRISONERS
The Marshals Service contract detention program is becoming
increasingly important in light of the current crisis situation in
the nations jails.
There has been a rapid increase in the costs for housing
Federal prisoners in local contract facilities, and a decrease in
the number of contracts and bed spaces available. The daily jail
rate has increased from an average of $21.70 per day in 1981 to
approximately $31.68 per day in 1983. Of our 733 contract
facilities utilized in 1982, 658 facilities or 99% of all
facilities used, raised their daily costs for 1983.
The Cooperative Agreement Program and the Federal Excess
Property Program have allowed us to assist the local detention
facilities and, at the same time, guarantee bed space for Federal
prisoners. We would endorse any expansion of these programs as we
expect both the lack of detention space and the need to house
growing numbers of Federal prisoners to increase.
CIVIL PROCESS
On January 12 of this year, President Reagan signed Public
Law 97-462, implementing amendments to Rule 4 of the Federal Rules
of Civil Procedure which significantly reduce Marshals Service
7
responsibility for service of civil process. The amendments,
which went into effect just last week, relieve the Marshals
Service of its obligation to serve summonses and complaints, in
any manner, on behalf of private parties, with the exception of
seamen, paupers, and upon specific court order in a particular
case. Service of private civil summonses and complaints is now,
primarily, the responsibility of the plaintiff or plaintiff's
attorney. The amendments also provide that Federal civil process,
including process served by the Marshals Service, may be served by
first-class mail, except when personal service is court ordered.
These long-awaited amendments may result in an increase in
administrative workload but may free up critically needed
operational resources for other missions of the Service.
In accordance with Title 28 of the U.S. Code, Section 1921,
the Marshals Service will continue to charge a $3.00 fee to those
private litigants who are eligible to request that the Service
issue a summons or complaint. Originally, the proposed amendments
called for the Marshals Service to retain the process fees
collected rather than turn them over to the General Fund of the
Treasury. This provision, however, was not included in the final
bill and is a consideration the Marshals Service would like to
pursue in the future.
8
WITNESS SECURITY
Regarding the Witness Security Program, it is notable that
the U.S. Marshals Service has, again, met all requirements for the
safe transportation and production of protected witnesses for all
required court appearances and related activities without incident
of bodily injury to any of the witnesses. During 1982 the Service
produced and protected witnesses for numerous high profile trials
such as several Hells Angels murder and drug cases, Iranian
Terrorists, the Nuestra Familia prison gang murders, and the Judge
Woods murder trial. Witness Security Inspectors recently provided
round-the-clock protective services for John Hinckley until his
commitment, and again after his most recent suicide attempt.
The Service received 324 new witnesses in the program for
fiscal year 1982 compared with 282 in 1981 -- a 15% increase. A
total of 1,047 principals were funded and/or serviced during 1982
as compared with a total of 1,052 for 1981. The number of
principal participants terminated or released from the program was
450 for 1982 compared to 288 for 1981 -- a 56% increase.
Significantly, as of the end of fiscal year 1982, a total of 4,106
principal participants have been enrolled in the program since its
inception. The Marshals Service expended a total of 446,000 hours
during fiscal year 1982 in connection with program activities, an
increase of 9% over 1981.
9
Other program accomplishments include the automation of
subsistence funding and accounting and other procedural and
systems improvements.
It should be recognized that approximately 97% of the
principal witnesses in the program have criminal records and that
the recidivism rate for those relocated individuals is between 15
and 17%. This compares favorably with an estimated recidivism
rate of 50% for convicted criminals as a whole. This comparison
is further indicative that the overwhelming majority of relocated
witnesses have adjusted well.
The U.S. Marshals Service strongly supports the contention
that more strenuous entry standards are needed in the Protected
Witness Program and that victims of Protected Witnesses should be
given some consideration for compensation.
10
THE WHITE HOUSE
WASHINGTON
March 7, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Testimony of Assistant
Attorney General McGrath on
Civil Division Authorization
The Department of Justice has submitted the above-referenced
proposed testimony, scheduled to be delivered March 9 before
the Subcommittee on Administrative Law and Government
Relations of the House Judiciary Committee. The testimony
asks for a $7 million increase, primarily to provide in-
creased automated litigation support. The testimony also
describes the continuing need for reform of the Federal Tort
Claims Act to address the escalating number of suits against
federal employees, the debt collection activities of the
Civil Division, and its new responsibilities for most
immigration cases (transferred from the Criminal Division).
I see no legal objection.
Roberts
ID
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
J. Paul McGrath
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Statement concerning Civil Division Authorization
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
w Holland
ORIGINATOR 83,03,05
/ /
Referral Note:
WAT 18
A 83/03/05
5
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A - Answered
C Completed
C Comment/Recommendation
R. Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S . For Signature
F . Furnish Fact Sheet
X - Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response - Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
DRAFT
STATEMENT
OF
J. PAUL McGRATH
ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS
HOUSE OF REPRESENTATIVES
CONCERNING
CIVIL DIVISION AUTHORIZATION
ON
MARCH 9, 1983
DEPARTMENT OF JUSTICE
CIVIL DIVISION
STATEMENT OF ASSISTANT ATTORNEY GENERAL
J. PAUL MCGRATH
BEFORE THE HOUSE SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS, COMMITTEE ON THE JUDICIARY
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to be here this morning
to discuss the work of the Civil Division and our 1984 budget
request. For 1984, the Division is seeking a budget of
$44,815,000 and 702 permanent positions. This request includes
$2,508,000 and 53 permanent positions which are being trans-
ferred to the Civil Division from other parts of the Justice
Department to implement the reorganization plan which was
submitted to the Subcommittee earlier this year. You
will recall that the reorganization involved the transfer of
responsibility for consumer litigation from the Antitrust
Division to the Civil Division and the transfer of responsi-
bility for civil immigration litigation from the Criminal
Division to the Civil Division. In addition to formalizing
the transfer of budget authority for these two areas of
litigation, our 1984 budget seeks a program increase of
$7,067,000 and 9 permanent positions.
As the Government's lawyer, the Civil Division plays a
pivotal role in protecting the financial status of the Federal
Government, the President's domestic and foreign policies
and the statutory and regulatory integrity of the numerous
entitlement and other Federal programs established by the
Congress.
-2-
Civil Division attorneys are primarily litigators appearing
before the courts on behalf of most government programs with the
exception of those covered by our Lands, Antitrust and Tax Division.
We litigate cases involving tort claims, government contract and
other commercial claims, and the interpetation of statutes and
regulations in specific federal programs, in federal district
courts, the Courts of Appeals and specialized courts such as
the Court of International Trade and the Claims Court. I
personally have handled litigation while in my present job and
am familar with the kinds of pressures faced by our staff attorneys.
Over the past two years the caseload of the Civil Division
increased by almost 30 percent and if present trends continue
it will increase by an equal percentage over the next two years.
In actual numbers this represents an increase in pending cases
from slightly more than 23,000 at the beginning of fiscal year
1981 to almost 38,000 by the end of 1984. The cases pending
at the end of the 1982 involved claims of $86.8 billion and
we expect this amount to increase to $160 billion by 1984.
These dollar figures do not include the potential increase of
billions of dollars in the cost of Federal entitlement programs
which are at issue in many of the cases we are now handling.
Despite these huge increases in the volume of cases which we
are handling, the Division has been able to sustain a remarkable
record of success on behalf of its client agencies. For example,
in claims against the Government which were closed during 1982
we were successful in limiting awards to $141 million against
-3-
claims of $115 billion or approximately .0012 percent of the
amount claimed, Conversely, in our affirmative cases we secured
awards of 18.5 percent of the amount we were seeking to recover
(awards of $110 million in claims of $594 million). At the
same time we secured favorable judgments and settlements in
approximately 92 percent of our non-monetary litigation.
Our ability to sustain this level of success while coping
with the increasing volume of complex litigation is largely
attributable to several management actions which we have taken
to improve the productivity of our staff. Our future success
will be strongly influenced by our ability to continue and
expand upon these initiatives. The funding increase which
we are seeking for 1984 is for these purposes.
There are three aspects of our request and I would like to
briefly discuss each of them.
The major share of the increase is $6,148,000 for
automated litigation support. Increasingly, our success
is being influenced by the efficiency with which we use
information. Much of the litigation which our lawyers
handle involve massive collections of documentary evidence,
large numbers of individual claimants and extensive volumes
of witness depositions and hearing and trial transcripts.
If we are to provide quality legal service to our clients
we must be able to organize, master and use all this
information in a cost efficient manner. Manual handling
is unworkable and would also require a massive increase
-4-
in attorney and paralegal personnel. In 1982 we initiated
a program to apply computer and other information handling
technologies to four of our largest families of cases.
This year we are expanding this program to several other
families of cases and with the additional funds we are
seeking for 1984, we will be able to expand it to cover
all of our large document cases. This will include
approximately 15 percent of our cases in 230 case families.
With these funds we will be able to organize, screen,
index, microfilm and computerize the evidentiary documents,
depositions and transcripts in all these groups of cases.
We will then be able to use all the information to prepare
for and effectively litigate these cases.
The second element of our requested program increase
is for $769,000 for office automation. Over the past
three years we have developed and implemented programs to
modernize and automate our word processing, case manage-
ment, attorney timekeeping and management service
activities. Last year we developed and began implementa-
tion of a comprehensive plan to merge these separate
systems as well as our automated litigation support and
both public and private legal research systems into a
single integrated system. Our integrated system, which
we have named AMICUS, will make all of these systems
available to each of our attorneys, paralegals and support
personnel through executive and clerical terminals located
-5- -
at the workstation of each employee. Through this workstation
system each empl yee will be able to access all of the
automated systems, The AMICUS system will also include local
and long distance communications, information query and
retrieval, high speed printing, automatic letter writing
and electronic mail. The system has already demonstrated
its capability to increase both clerical and attorney
productivity and effectiveness in the parts of the Division
where it has been installed. The increase which we are
seeking for 1984 will enable us to lease the additional
equipment necessary to expand the system throughout the
Division. I have a brochure which we have developed on
the system which I would like to leave with the subcommittee.
The final aspect of this funding increase is $150,000
to enable us to upgrade eight of our existing positions to
provide management and oversight of our expanded litigation
support and office automation efforts. These eight positions,
which will be vacated through attrition, are presently
occupied by clerical employees and will be filled by computer
specialists, computer programmers and litigation support
specialists.
Finally, our budget requests an increase of 9 permanent
positions. This increase will permit us to appoint on a
permanent basis our mail messengers who for the last three
years have held temporary appointments. We are not requesting
additional funds for these positions.
6
I would like now to discuss some of the significant program
issues we now face.
First are constitutional torts or the so called Bivens
actions. Suits against present and former federal employees
for money damages as a result of official governmental
conduct continue to be filed at an alarming rate. In these
cases the defendant is liable personally for the damages under
current law. During fiscal year 1982, the Civil Division,
which is responsible for authorizing and effecting representation
in the majority of cases, received an average of 60 new cases
each month. The total number of pending suits against present
or former federal employees is approximately 2,300. During
the past three months, the Torts Branch handled an average of
71 cases per month. It is perhaps of equal significance to
note that an additional 86 cases were rerouted to other
Divisions or within the Department of Justice for appropriate
handling. It thus would appear that suits are continuing to
increase and there is no indication that this trend will
diminish.
Of the approximately 10,000 cases which have been filed
since 1970, there have been, to date, 16 adverse judgments
against federal officials. The damages assessed range from
$1.00 to a total of $1.9 million awarded against the estates
of former Senator McClellan and members of his staff.
The governmental activities at issue run the gamut from a
Senatorial investigation to personnel matters; from destruction
of rusting car bodies in a National Forest to following
Department of Agriculture veterinarian program requirements.
A number of the adverse judgments have been paid by the
federal employee/defendants; the remainder are in various
stages of the appellate process.
Bivens suits against federal employees have a direct and
adverse effect upon government operations. While this impact
is difficult to quantify, the Supreme Court of the United
States recently commented in its decision in Harlow and
Butterfield V. Fitzgerald:
At the same time, however, it cannot be disputed seriously
that claims frequently run against the innocent as well
as the guilty--at a cost not only to the defendant
officials, but to the society as a whole. (Footnote
omitted.) These social costs include the expenses of
litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from
acceptance of public office. Finally, there is the
danger that fear of being sued will "dampen the ardor of
all but the most resolute, or the most irresponsible
(public officials), in the unflinching exercise of their
duties. "
It is these "social costs" which have prompted the
Administration to seek a legislative solution to the problem.
In the 97th Congress, I testified in support of legislation
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which would amend the Federal Tort Claims Act to waive
sovereign immunity for constitutional violations and make
suit under that Act the exclusive remedy for citizens injured
by the actions of federal officials. (A copy of the testimony
is attached for reference.) The record of the hearings before
both House and Senate Subcommittees documents the fact that
the present situation is intolerable. In this Congress,
similar legislation has already been introduced in the House
(H.R. 595) and we are actively working on proposals with the
Senate. The goal of all involved in this legislative endeavor
is to provide a viable, financially responsible defendant--
the United States--so that those plaintiffs who were injured
could recover. In addition, suit against the United States
would be an exclusive remedy, thereby protecting federal
employees from the burdens of litigation and the fear of
adverse judgments. The track record to date, only 16 adverse
judgments out of literally thousands of suits, demonstrates
that the federal employee is not engaged in an untrammeled
assault upon the constitutional rights of the citizenry.
With respect to handling the increasing caseload, the
bulk of the defense effort is mounted by the United Sates
Attorneys in the 96 districts. Since each case involves local
circumstances and facts, it would be impossible and impractical
for the majority of these cases to be handled out of Washington.
At the same time, there is a significant number of cases of
national scope and import which require centralized handling.
The resources of the Civil Division are already strained to
- 9 -
the limit and there is very little room for the assumption of
responsibility for the increasing caseload.
The question of whether there is any possible explanation
for the increase in suits against federal officials is an
intriguing one indeed. Perhaps the answer more properly lies
in the area of sociology rather than jurisprudence. The
increase of suits is not restricted to federal officials;
rather, it involves all levels of government. For example, in
a report for the Administrative Conference of the United
States, it was noted that the number of suits against state
and local officials in federal court under 42 U.S.C. § 1983
has increased from 261 in 1961 to over 25,000 filed in 1979.
Whatever the cause, the effect is detrimental to the operations
of government and the public is being disserved by the present
situation.
The second area I would like to discuss is our debt
collection activities. The Administration and the Attorney
General have assigned great importance to the task of collecting
debts owed to the United States as a result of defaulted
loans, settlements or judgements and other court imposed
obligations. The Attorney General has given me a lead role
for the Department of Justice on all collection matters.
The passage of the Debt Collection Act has greatly
enhanced the ability of all Federal agencies to collect their
debts.
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The Government now has the power to disclose debt
information to consumer reporting agencies. An individual
can now receive a negative credit rating as a result of a
government debt. In addition, when an agency determines that
a Federal employee, or a member of the Armed Forces or
Reserves is indebted to the United States the debt can be
collected through a salary offset. Other major provisions of
the act allow the government to impose interest penalties and
to assess charges to cover the costs of processing and handling
delinquent claims.
The Debt Collection Act will have some effects on the
amount of litigation and the other collections actions which
Justice must take. Since the power of the agencies has been
increased there is not as great a need to initiate litigation
to recoup debts.
With the increase in our debt collection enforcement
activities, we are confident the Department will be able to
increase significantly the amount it collects. Collections
of civil debts and criminal fines by the Department in FY 82
amounted to slightly more than $200 million.
The final area I would like to discuss is the Division's
new responsibility for immigration litigation. As you are
aware, another of the Administration's high priorities is to
bring the immigration problem under control. The realignment
of responsibility for handling litigation arising out of the
immigration laws is an integral part of these efforts.
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Under this realignment the Civil Division has assumed
the responsibility for all civil proceedings, including habeas
corpus petitions filed by aliens, relating to the validity of
detention, exclusion or deportation. All civil actions
brought against either the employees of the Immigration
Naturalization Service or the Government arising out of
employees actions on behalf of the Government; and civil
actions resulting from programs undertaken for the purpose of
facilitating the detention of excludable or deportable aliens
based on their danger to the community have been transferred to
the Civil Division.
The Criminal Division has retained exclusive jurisdiction
over criminal cases, denaturalization cases concerning persons
believed to have been involved in Nazi war crimes, civil
forfeiture actions and remission petitions, and certain other
civil matters bearing on criminal law enforcement.
The Civil Division's objectives in handling immigration
litigation are: to conduct promptly and efficiently the
relatively large number of litigated matters ranging from the
routine to the moderately complex; and to maintain the capacity
to respond with experienced litigators to major litigation.
The Civil Division will maintain a more centralized
control over litigation and will personally handle many
of the cases which would previously have been delegated to
the U.S. Attorneys. Litigation is controlled by attorney
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teams each headed by a senior litigating attorney, and including
at least one other trial attorney. Each team is given a
mixture of routine and complex cases and can handle District
Court as well as Appellate matters. This litigation-team
approach effectively allows us to respond to not only routine
cases but multiple emergencies as they arise without significant
disruption of normal duties. It will also permit us to
develop a cadre of attorneys with specialized knowledge and
skills in the handling of this specific type of litigation.
I would be happy to answer any questions or respond to
any comments members of the Subcommittee may have.
U.S. Department of Justice
Washington; D.C. 20530
STATEMENT
OF
J. PAUL McGRATH
ASSISTANT ATTORNEY GENERAL
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON AGENCY ADMINISTRATION
UNITED STATES SENATE
CONCERNING
S.1775 - FEDERAL TORT CLAIMS ACT
ON
MARCH 31, 1982
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
I am pleased to appear before your Subcommittee in support
of S.1775, a Bill which would make the United States the
exclusive defendant for all torts committed by federal
employees within the scope of their employment and would, for
the first time, make the United States liable for constitutional
torts. The Bill would provide for the substitution of the
United States for defendant employees acting within the scope
of their employment in all suits alleging common law or
constitutional torts.
With me is John L. Euler, an Assistant Director in
the Civil Division which I head at the Department of Justice.
Among my duties as Assistant Attorney General of the Civil
Division is supervision of the representation and defense of
federal employees personally sued in their individual
capacities. Mr. Euler and his immediate superior, Torts Branch
Director, John J. Farley, III, are immediately responsible
for this effort and Mr. Euler is therefore intimately familiar
with our day-to-day practice of law this area. Deputy Attorney
General Edward C. Schmults has previously testified before
you concerning S.1775 and conveyed the Administration's
strong support for this initiative. My purpose this morning
will be to briefly sum up the case for the Bill and urge its
prompt enactment.
Mr. Chairman, at the outset, it seems appropriate to
express our appreciation for your leadership in this vital
area of defining the civil law relationship between the
government, its public servants and the citizenry. We are
further along the path of resolution of this problem than
ever before. That is because of the efforts of you and your
fine staff. Due to that effort a complete and detailed record
has been developed in the course of these hearings and the many
written submissions. The problem has been defined; a solution
proposed. Proponents and opponents have stated their cases.
All of the concerns and questions seem to have been fully
discussed. For example, the testimony submitted today by the
Office of Personnel Management makes an eloquent and persuasive
case for S.1775. We are now at the point where concrete
legislative action is appropriate and supported by the record.
To briefly summarize, we understand S.1775 to be responsive
to three problems. First, it addresses the large number of
suits filed personally against federal employees at every
level of the government for doing no more than carrying out
the duties which Congress and the President have ordered them
to perform. We estimate that there have been 7,500 to
10,000 of such suits since 1971. They are increasing. If an
employee suffers an adverse judgment, with very few exceptions,
it is he or she who must pay it.2/ It is shocking to think
that these individuals have no protection. No other group
of employees or professionals lies SO exposed to personal
catastrophic loss through legal action as federal public
servants. I submit that every other identifiable group in
our society is protected by some form of indemnity, subrogation,
- 2 -
insurance, or the law of respondeat superior. As a first
principle, it is terribly unfair to ask them to bear such a
burden. Beyond. that, the cost to good government from the
combination of chilling effective action, diverting resources
and talent, shortening laudible careers, discouraging quality
recruitment and requiring endless, non-productive litigation
is incalculable. The record before this Subcommittee contains
mention of each of these detriments.3/
This leads to the second problem addressed by the
legislation. The citizen has no adequate remedy. The United
States cannot be sued for a constitutional tort.4/ The
modest assets of the public servant are the only available
resource. Even then he may not be suable because he may not
be subject to the personal jurisdiction of the court or
amenable to personal service of process.5/ of the thousands
of cases, there have been very few judgments6/ and very few
of those have, in turn, actually been paid. This not only
demonstrates that federal public servants have a good record
that does not justify a constant threat of personal lawsuits
but also shows the futility of a claimant pursuing that
route. The only realistic motivation then becomes that of
engendering individual fear and personal trauma. This has
never been recognized as a proper method of controlling
government or as a philosophic basis for tort law. Thus the
current system is self defeating for all concerned.
The third problem is the expense, complexity and protracted
nature of the cases engendered under the present scheme.
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Because the constitutional tort or Bivens case concerns the
personal finances of the individual defendants it can only
in the rarest of cases be settled. Because multiple defendants
are sued in almost seventy-five percent of the cases, conflicts
of interest sometimes arise and the Department hires private
counse] to represent each group whose factual positions
collide. 1/ Three million dollars has been spent in that
regard since 1976. In addition, because individual liability
is at issue, the trauma experienced by individual employees
requires a tremendous degree of attorney time devoted to
soothing the anxieties of the client and resolving issues of
potential conflicts of interest. The decisions that must
be made by both clients and we attorneys at the Department
of Justice in these cases are often excruciating. These
factors must be dealt with despite the fact that most of the
lawsuits are wholly without merit and will be eventually
disposed of on motion. Yet for the same reasons, (multiple
defendants and personal interests) many of the cases will
become exceedingly complex and proceed to resolution, if at
all, at a snail's pace but at large expense to both parties,
plaintiff and defendant. Thus, from any reasonable perspective,
the current scheme of civil tort liability is a failure.
S.1775 would resolve each of these problems in the
fairest and most workable way that has been suggested to
date. Public servants would no longer be subjected to the
spector of the loss of their homes and their childrens'
- 4 -
education for actions talen in the scope of their employment.
At the same time, their conduct would just as surely be
amenable to the scrutiny of the courts through an action
brought against the United States where even the good faith
and reasonableness of their actions could be challenged. The
:
citizen would not lose his day in court. Rather he would
gain a greater guarantee of having a hearing in a judicial
forum. The citizen would be presented with a defendant
amenable in every case to personal jurisdiction and service
of process, who would be in a position to settle cases and
who could pay the adverse judgment that might result from
trial. Cases would proceed much more expeditiously to
resolution with the cost to both parties drastically reduced.
To paraphrase an earlier witness in these hearings, the
original plaintiff, Webster Bivens, would fare better under
this legislation than under existing case law.
Opponents to this legislation9/ raise primarily an
argument based upon the principle of accountability. The
reasoning is that the current sword of Damocles which hangs
over the head of the public servant prevents him or her from
doing wrong. The short answer is that it prevents him or her
from doing what is right. "The deterrence we have is that of
deterring federal employees from doing their duty. 10 The
knowledgeable official who is aware of the state of the law
cannot help but face a difficult decision with trepidation
because of, what should be an extraneous, consideration for
his or her personal welfare. The welfare case worker, the
probation officer, the meat inspector, the contract officer,
- 5 -
the revenue agent, the congressional staffer, the law enforcement
officer, the personnel manager, the job foreman, the federal
veterinarian, even the forest ranger are at least given
pause and perhaps prevented from carrying out the very mission
that Congress has set for them. This state of affairs means
that the taxpayers are not getting the quality of service
for which they are paying.
In addition, I submit that the accountability argument
places undue emphasis upon a damages remedy and ignores the
plethora of other sanctions available ranging from agency
punishment, including loss of livelihood, to a finding that
the actions were beyond scope of employment and not actionable
against the United States, to injury to professional reputation,
to criminal prosecution. Moreover, I submit that a letter
from the Attorney General to the head of an agency calling
into question the conduct of an employee whose actions have
been found sufficiently lacking in good faith or reasonableness
to require payment of a claim will be taken very seriously
indeed. This Bill would require such a letter. The damages
remedy is one small piece of the pie and the people of the
United States pay far too large a price for it.
In the same vein, it is important to note the preoccupation
of the opposition with law enforcement torts. The original
Bivens case arose out of law enforcement and that has been
the traditional way to think of this area of the law. However
those kinds of cases are now a decreasing percentage of the
whole. As I have noted, there are cases arising generally
- 6 -
from personnel matters and from virtually every other government
activity. Excluding cases filed by prison inmates, these
three types (general government, law enforcement, personnel)
are the three main categories of current filings. The law
enforcement cases appear to make up somewhat less than a
third.
Equally important to note is that this legislation is
not designed for the relief of past and present high level
officials. Based on our experience at the Department of
Justice, the people who are now being sued in increasing
numbers are the citizen-level workers of government, the
professional and non-professional public servants who are
charged with directly administering the services mandated by
the Congress and the executive. That brings us to the
final major argument of opponents to S.1775.12/ It sounds
in the proposition that there may be an occasional miscreant
who escapes retribution should the legislation be enacted.
First, as a result of the system of sanctions and subjective
restraints, such as professional reputation, already in
place and documented in this record we think that eventuality
to be unlikely. Secondly, in order now to be sure of having
the narrow, yet unlikely, legal possibility of punishing the
very few through civil damages, we have placed in jeopardy
and confusion the functioning of all civil servants and have
not correspondingly provided the plaintiff with a remedy
that he can expect to be realized. In other words, the
current "remedy" is grossly disproportionate to the problem.
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In the final analysis then, the system as it exists s
does not work. Few would dispute that S.1775 represents a
improvement. Most, including both victims of torts and
victims of suits, would conclude that it represents a grea
improvement. Thus it is clearly in the public interest to
pursue S.1775 to enactment. It bears remembering that the
scheme established by the Bill would not be irrevocable.
experience dictates, it can be modified by appropriate leg
to achieve greater equity and efficiency should the need a
We can certainly do no worse than that which now exists.
also submit that we will indeed have done much better she
this proposal become law.
Mr. Chairman, we would be pleased to respond to your
questions.
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FOOTNOTES
1/ In an article entitled "Suing Our Servants" appearing
in the 1980 edition of The Supreme Court Law Review published
by the University of Chicago, (page 281), Peter H. Schuck,
Associate Professor of Law, Yale Law School, makes a convincing
case for the proposition that the most frequent targets of
such suits are the everyday public servants who operate at
the level which deals directly with the public; e.g. the
welfare or social service case worker, the safety inspector,
the hospital administrator, the law enforcement officer,
etc.
2/ There are some limited classes of employees who may, by
specific statute, be held harmless or insured by their
department or agency heads within the latter's discretion.
10 U.S.C. 1089 (f) (DOD medical personnel) ; 38 U.S.C. 4116 (e)
(Dept. Medicine and Surgery personnel) ; 42 U.S.C. 233(f)
(certain Public Health Service officers) ; 42 U.S.C. 2458a(f)
(NASA medical personnel); 22 U.S.C. 817 (f) (Foreign Service
medical personnel). These persons are already personally
immune through exclusive remedy provisions virtually identical
to that proposed in S.1775. The "hold harmless" provisions
presumably were added to provide for the theoretical case in
which an exception to FTCA jurisdiction under 28 U.S.C. 2680
might be construed to leave open a common law tort suit only
against the individual. Such a final protection would be a
wise provision to add to S.1775 and we would be happy to
provide appropriate language.
3/ See testimony of Jerome F. O'Neill, Robert C. Lehman,
John S. Martin, Jr., and William B. Cummings, of November 13,
1981. Testimony of William Howard Taft, IV, Dr. Marvin
Schneiderman, Mr. Jerry Shaw and Mr. Rod Murray of November 16,
1981.
4/ Duarte v. U.S., 532 F.2d 850 (2d Cir. 1976) ; Norton
v. U.S., 581 F.2d 390 (4th Cir. 1978) ; Ames V. U.S., 600 F.2d
183 (8th Cir. 1979) ; Jaffee V. U.S., 592 F.2d 712 (3rd Cir.
1979) ; Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir. 1973).
5/ Rule (b) (2) (3) (4) and (5), Federal Rules of Civil Procedure.
Stafford V. Briggs, 444 U.S. 527 (1980).
6/ Written testimony of Edward C. Schmults submitted on
November 13, 1981, footnote 11. In addition, we have been
advised of the following four judgments:
Hobson V. Jerry Wilson, et al., D. D.C. Civil Action No.
76-1326. A total of $711,000 was awarded seven former antiwar
activists against fourteen present or retired officers of
the FBI or the Washington, D.C. police department. The suit
charged violation of constitutional rights during undercover
surveillance activities in the 1960s and 70s. The verdict
was complex, awarding different amounts for and against
different parties.
Epps V. United States, et al., D. Md. CA No. J-78-2373. A
judgment of $200, 000 was awarded against a Field Branch
Chief of the IRS for allegedly vandalizing the property of
the plaintiff while her business was in the possession of
the IRS.
Nees V. Bishop, et al., D. Col. 524 F.Supp. 1310 (1981).
$1,000 was awarded to a plaintiff who alleged that the losing
defendant had deprived him of his right to counsel by allegedly
advising state custodial authorities that he need not see a
state public defender since he had been incarcerated on a
federal charge.
Clymer, Jr. v. Grzegorek, et al., E.D. Va., CA No.
80-1009-12. Dumages of $1.00 were awarded against a former
federal correctional institution warden in favor of a prisoner
who claimed overcrowding and understaffing led to violence
and an assault upon him.
1/ Our latest figures indicate that there are 18 pending
cases where private counsel have been hired. Some 41 law
firms are under contract and requests are pending in 4 other
cases contingent upon the realization of funding.
8, See testimony of Messrs. Martin and O'Neill on November
13, 1981 and of Dr. Schneiderman and Mr. Shaw on November 16,
1981.
9/ See testimony of Mark H. Lynch, ACLU, of November 13, 1981
and of Alan B. Morrison and Louis Clark of November 16, 1981.
10/ Testimony of Mr. O'Neill, November 13, 1981.
11/ See also the article by Professor Schuck referred to in
footnote 1 supra.
12/ Opponents have also raised an argument that S.1775 may
be unconstitutional. Quite to the contrary, the Supreme
Court in Carlson V. Greene, 446 U.S. 14 (1980), clearly held
that Congress could declare the Federal Tort Claims Act to be
an exclusive remedy but had simply not yet done SO. Moreover,
exlusive remedy provisions have been upheld in the past as
being constitutional. See Nistendirk V. McGee, 225 F. ,Supp.
881 (W.D. Miss. 1963); Vantrease V. United States, 400 F.2d
853 (5th Cir. 1963). See also, Silver V. Silver, 280 U.S.
117 (1929). Furthermore, as the testimony of the Director of
the Office of Personnel Management points out today, there
ate suggestions in the Bivens case itself that Congress should
legislate a comprehensive solution. See 403 U.S. at 412, 418
and 421.
THE WHITE HOUSE
NETON
March 8, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Testimony by Ted Olson on
OLC Oversight and Authorization
The Department of Justice has submitted the above-referenced
testimony, to be delivered March 10 before the Subcommittee
on Monopolies and Commercial Law of the House Judiciary
Committee. The testimony is very brief. It describes the
role of the Office of Legal Counsel as assisting the Attorney
General in his role of legal adviser to the President and
Executive Branch, reviewing Executive Orders, and resolving
Executive Branch legal disputes. It notes as two of the
"major projects" of the office in the past year a memorandum
on legal authorities available to respond to an energy
shortage and another on federal non-reserved water rights.
I see no legal objection.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Theodore B. Olson
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
Draft statement on oversight and authorization of the
Office of Legal Counsel
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency (Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
W Holland
ORIGINATOR
83,03,08
/ /
Referral Note:
WAT 18 18
A 83,03,08
$ 83,03,09
Referral Note:
/ /
/
/
-
Referral Note:
/
/
/ /
-
Referral Note:
/ /
/ /
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R - Direct Reply w/Copy
8 . Non-Special Referral
S Suspended
D Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
STATEMENT
of
Honorable Theodore B. Olson
Assistant Attorney General
Office of Legal Counsel
On Oversight and Authorization of
the Office of Legal Counsel
before the
Subcommittee on Monopolies and Commercial Law
of the
House Committee on the Judiciary
March 10, 1983
Mr. Chairman and Members of the Subcommittee:
I am pleased to have the opportunity to appear
before the Subcommittee this morning in connection with this
oversight and authorization hearing regarding the Office of
Legal Counsel of the Department of Justice.
The principal function of the Office as set forth
in 28 C.F.R. § 0.25 is to assist the Attorney General in
his role as legal adviser to the President and Executive
Branch agencies. Requests for legal advice are received
from a variety of sources, including the President, the
White House staff through the Office of Counsel to the
President, the Attorney General, heads of other executive
departments, and other Department of Justice officials. A
small number of requests are considered appropriate for
formal Attorney General opinions, which are drafted pre-
liminarily in the Office and reviewed, revised and approved
by the Attorney General The majority of such requests
result in the preparation of legal opinions signed by the
Assistant Attorney General or one of the Deputies based
upon the research of one or more of the 16 staff attorneys.
Still other requests result in the provision of oral advice
to the client.
The Office has the responsibility to review
proposed Executive Orders, examining each with regard to
form and legality before it goes to the President for
signature. Under Executive Order 12146, the Office has
been charged with responsibility for considering and
resolving legal disputes between two or more departments.
This charge reflects the historic role performed by the
Office with regard to the resolution of such disputes over
many decades. The Office also plays a role in resolving
differences between the Department's litigating divisions
and their many client agencies regarding positions to be
taken by the United States or its agencies before the
courts.
The Office of Legal Counsel also provides legal
advice to the President and his staff regarding the scope
of the President's constitutional duties and responsibilities
in the context of the constitutionally prescribed separations
of powers.
During the past year, the Office has completed
several major projects, including a Memorandum of Law
entitled " Legal Authorities Available to the President to
Respond to a Severe Energy Supply Interruption or other
- 2 -
Substantial Reduction in Available Petroleum Products"
dated November 15, 1982 (prepared pursuant to § 3 of the
Energy Emergency Preparedness Act of 1982, Pub. L. No.
97-229, 96 Stat. 248, and a memorandum of law on the subject
of "Federal 'Non-Reserved' Water Rights" dated June 16, 1982.
This concludes my statement, Mr. Chairman. I shall
be pleased to answer any questions you or other Members of
the Subcommittee may have.
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