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A study of the incidence of personal tort liability of public officials and its effects on administrative behavior in the U.S. Forest Service

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A study of the incidence of personal tort liability of public officials and its effects on administrative behavior in the U.S. Forest Service
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Robinson, William Milton
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English
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xvi, 337 leaves : ; 29 cm

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Administrative responsibility -- United States ( lcsh )
Administrative responsibility ( fast )
Employees ( fast )
United States ( fast )
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theses ( marcgt )
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Includes bibliographical references.
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Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
General Note:
School of Public Affairs
Statement of Responsibility:
by William Milton Robinson.

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University of Colorado Denver
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ocm28246791
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Full Text
A STUDY OF THE INCIDENCE OF PERSONAL TORT
LIABILITY OF PUBLIC OFFICIALS AND ITS EFFECTS
ON ADMINISTRATIVE BEHAVIOR IN
THE U.S. FOREST SERVICE
by
William Milton Robinson
B.S., Louisiana State University, 1959
M.S., North Carolina State University, 1971
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Public Administration
1992


This thesis for the Doctor of Philosophy
degree by
William Milton Robinson
has been approved for the
Graduate School of
Public Affairs
'jJx~
Dail A
kuyf/lJu'
. Nejli
garten
Daniel B. Rosenbluth


Robinson, William Milton (Ph.D., Public
Administration)
A Study of the Incidence of Personal Tort Liability
of Public Officials and Its Effects on
Administrative Behavior in the U.S. Forest
Service
Thesis directed by Associate Professor Lloyd
Burton
ABSTRACT
Traditional public administration concerned
improving the exercise of agency regulatory power
and making government more business-like. Technical
experts were expected to implement objective and
rational decisions. Recently, the public's faith in
government and its experts has been shaken. Tort
lawsuits against federal employees have
proliferated.
The federal statutes on which personal tort
suits are commonly based are explained. The
judicial development of common law and
Constitutional law personal tort liability,
including Bivens v. Six Unknown Agents of Federal


Bureau of Narcotics. 403 U.S. 388 (1971), and
Westfall v. Erwin. 484 U.S. 292 (1988), is
presented. Both the laws and the court decisions
are found to be confusing and complex.
The number of suits filed in federal courts
between 1960 and 1989 increased exponentially. Tort
liability cases based upon the Federal Tort Claim
Act and the U.S. Constitution were significant
contributors to the increase.
U.S. Forest Service employees were surveyed to
determine their concerns about personal tort
liability. The daily work of most Forest Service
employees involves direct public contact. This
contributes to the feelings of risk and exposure to
legal action. These concerns do not appear to
affect the productivity of employees nor do they
substantially impede the agency mission. However,
many employees are misinformed about the risks and
consequences of tort liability. They believe that
Constitutional liability suits are increasing and
they are uncertain about proper procedures for
protecting both the public and themselves from this
IV


type of liability. Few employees have been trained
or informed about tort liability and almost all
believe that education is urgently needed.
Many employees said that their knowledge of
tort liability risk actually improves civil rights
protection for the public. But, there is
significant worry about the risk of liability.
Although productivity appeared to be unaffected,
this worry reduces innovation and inhibits the
introduction of cost-saving approaches to work.
Other legally defensive behaviors were
identified. These include delay or avoidance in
acting, increased documentation, and responding to
hypothetical legal challenges. Sometimes the
defensive behaviors have unintended negative
effects. Generally, these actions help assure that
government actions are supportable and proper.
This abstract accurately represents the content of
the candidate's dissertation. I recommend its
publication.
Signed.
v


Dedication
This thesis is dedicated to my wife, Pat. Without
her support, insistence, and love this study would
not have been possible.


Acknowlegements
The assistence and support of the Forest Service is
gratefully acknowledged. In particular, I owe a
debt of gratitude to the following:
Lamar Beaseley, who authorized the
Memorandum of Understanding under which the
survey was conducted;
DiAna Smith and Robert Birnstengel, who
gave their insights, experience, and ideas
regarding the incidence and effects of tort
claims and suits, and who showed me every
courtesy and consideration as I probed the case
files entrusted to their care;
Tom Martin, who conducted the statistical
sampling of Forest Service employees, helped me
to understand and conduct the sampling process,
and who provided the list of the individuals to
be surveyed in a very short time;
Tom Baggett, who transformed the completed
survey forms into a computer data base and
assisted in the compilation of results; and,
The dedicated women and men of the Forest
Service who responded to the survey, provided
written comments, and consented to be


a>
interviewed. These represent a corps of
federal workers who care deeply about the
citizens they serve and the environment in
which we live.
My sincere thanks and appreciation go to all of you.


TABLE OF CONTENTS
Figures......................................xii
Tables......................................xiii
CHAPTER
1. INTRODUCTION................................1
Perspectives on Public Administration . .3
Study Objectives and Hypothesis .... 14
The Research Approach ................. 17
Limitations and Delimitations ......... 26
Assumptions and Definitions of Terms 29
2. REVIEW OF CURRENT LITERATURE AND
RELATED RESEARCH ......................... 38
Introduction .......................... 38
Analysis of Laws, Theories, and
Fundamental Concepts .................. 39
Summaries and Critiques of Previous
Materials and Investigations .......... 48
Unresolved Issues, Significant
Problems and Unanswered Questions of
Previous Studies ...................... 74
Needs Which This Investigation
Will Fulfill............................76
Summary.................................77
3. HISTORICAL DEVELOPMENT OF PERSONAL TORT
LIABILITY DOCTRINES ...................... 80
Introduction .......................... 80
Common Law Tort Liability Doctrine . 85


Constitutional Law Tort
Liability Doctrine......................120
Conclusions.............................151
Summary ................................154
4. THE INCIDENCE OF TORT LIABILITY
LAWSUITS..................................165
Introduction............................165
Investigative Procedures................166
Results of the Statistical Analysis . .171
Personal Tort Liability in
the Forest Service......................186
Official Views of Personal
Tort Liability..........................190
Conclusions ............................196
5. THE INCIDENCE AND EFFECTS OF PERSONAL
TORT LIABILITY............................200
Introduction............................200
Survey Procedures.......................202
Results of the Analysis.................208
Additional Information from
Interviews..............................257
Conclusions.............................265
6. SUMMARY, CONCLUSIONS, AND
RECOMMENDATIONS ..........................270
Summary.................................270
Conclusions.............................282
x


Recommendations.........................288
APPENDIX
A. Questionnaire and Cover Letter..........29 6
B. Outline Guide for Interviews.............309
C. Annual Numbers of Cases Commenced in U.S.
Courts, by Type and Year, 1960-89 . . .311
D. Results of the Survey.....................312
BIBLIOGRAPHY......................................328


FIGURES
Figure
4.1. Cases Commenced in U.S. Courts, 1960-89 174
4.2. FTCA Cases Commenced in U.S. Courts, 1960-89 176
4.3. Comparison of All Cases, U.S. Defendant Cases, and FTCA Cases, 1960-89 179
4.4. Annual Number of Civil Rights Cases Commenced in U.S. Courts, 1960-89 . . 180
4.5. Comparison of All Cases, Federal Question Cases and Civil Rights Cases, 1960-89 . 183
4.6. Estimated Annual Numbers of Bivens-Tvoe Cases Commenced in U.S. Courts, 1960-89 184


TABLES
Table
3.1. Type of tort liability, harm, and
assignment of liability, by time periods. .84
4.1. Personal liability tort suits in
USDA, 1985-90 ...........................186
4.2. Sampled tort claims against the Forest
Service, by type and defendant
in lawsuits, 1990 188
4.3. Sampled personal injury claims against
Forest Service employees and/or the
United States, by type, 1990 ...........191
4.4. Sampled numbers of tort claims against
the Forest Service, by regional
location, 1990 .........................192
5.1 Recognition of the possibility of common
law personal tort suits, by intensity
of concern, number of employees,
and percentages............................2 09
5.2 Recognition of the possibility of
constitutional law tort suits, by
intensity of concern, number of employees,
and percentage ....................2 09
5.3 Number and percentage of Forest Service
employees who have been personally sued
in a tort liability case...................210
5.4 Number and percentage of employees
personally acquainted with someone in the
Forest Service who has been sued in a
tort liability case........................210
5.5 Percentages of Forest Service employees
who have been personally sued in tort,
by type of duty............................213
xiii


5.6 Percentage of Forest Service employees
personally acquainted with another employee
who has been sued, by type of duty . . . .214
5.7 Awareness of personal liability insurance
policies, by number and percentage
of employees ..............................215
5.8 Comparison of changes in belief of need
for insurance and employees who have
insurance, by number and percentage . .217
5.9 Percentage of employees by type of duty;
need to use police power, coercive authority
or forceful action; and liability
insurance coverage.........................218
5.10 Perceived change in risk of common law tort
liability suit in last 10 years, by number
and percentage of employees................219
5.11 Percentage of employees concerned about
being sued in common law by a person who has
been injured or had a property loss, level
of concern and type of job................220
5.12 Percentage of employees concerned about
being sued by a person who thinks
constitutional civil rights have been
violated, by level of concern and type
of job.....................................220
5.13 Effect of concern about personal tort
liability on job performance, by number
and percentage of employees...............225
5.14 Use of police power, coercive authority, or
forceful action in the job, by relative
intensity of use and number and percentage
of employees .....................................229
xiv


5.15 Opinion about effect of constitutional
liability lawsuits on protection of civil
rights, by number and percentage
of employees ......................231
5.16 Estimates of percent of common law tort cases
in which the government will assume
responsibility, by number and percentage
of employees ......................237
5.17 Percentage of employees expressing
confidence in government legal
representation by level of confidence
and type of duty...........................237
5.18 Tort liability and training, by number and
percentage of employees....................240
5.19 Information and training in constitutional
law liability, by number and percentage
of employees...............................241
5.20 Percentage of employees who have attended
training on constitutional liability and
attitude on civil rights protection . . .242
5.21 Percentage of employees who received tort
liability training, by type of duty . . .245
5.22 Percentage of employees who received
constitutional liability training,
by type of duty............................246
5.23 Percentage of employees who use police power,
coercive authority, or forceful action, by
type of duty ..............................248
5.24 Percentage of understanding of "scope of
authority" and "exercise of discretion",
by type of duty............................251
xv


5.25
C. 1
Relative amount of time spent in direct
public contact, by number and percentage
of employees ...........................
Appendix C, Tabular Results of Survey
. 254
.312
XVI


CHAPTER 1
INTRODUCTION
A common thesis of public administration
literature is that the making of laws should be
separated from their implementation. This belief
was articulated in an article by Woodrow Wilson, in
1887,1 in which government officials were urged to
take a "business-like" approach to their
administrative duties. Public administration
theorists and practitioners endorsed this view and
defined the business-like approach in terms of
science, efficiency, and economy. These became the
foundations of "traditional" public administration,
as prescribed and practiced for most of the
twentieth century. From Wilson to Watergate, most
Americans had great faith in the ability of
scientific and technical experts to conduct the
business of government. As this faith was reflected
in laws and policies, experts in all types of
1Woodrow Wilson, "The Study of Administration,"
Political Science Quarterly. 56 (December, 1941):
494, (originally copyrighted in 1887).


specialized agencies were authorized to make policy
decisions that affected all aspects of society.
Events of the past three decades undermined the
faith in science and technology. The public began
to seriously question both the role of experts and
of government itself. Simultaneously, there has
been a well-publicized and documented rise in civil
litigation in the United States. The explosion in
litigation has affected many sectors of the economy.
It has particularly affected the medical and health
field, manufacturing and industrial sectors, and all
levels of government. In recognition of this trend,
and dubbing the 1980's as the litigious decade,
President Bush issued Executive Order No. 12778, on
October 23, 1991. In the Order he urged all
agencies to use all possible avenues to avoid going
to court to "curb an out of control legal system."2
Some critics have cited the growth in civil
litigation involving the government as "proof" that
traditional managerial values have failed to achieve
Executive Order No. 12778, "Civil Justice
Reform" (Washington: The White House, October 23,
1991).
2


public administration goals. They proposed
replacing the old "scientific" theories with ones
that emphasize legal rights and procedures. The new
model of public administration, in the eyes of these
theorists, is the judicial system. Under this
concept, all discretionary decisions are to be
prepared for eventual testing in courts of law. If
this view is accepted, administrative case law will
be the standard by which the actions of government
agencies are measured.
Perspectives on Public Administration
In his review of American public administration
David Rosenbloom identified three distinct core
functions, each with a basis in public
administration theory.3 He has labeled these core
functions the "managerial", "political" and "legal"
perspectives of public administration.
According to Rosenbloom, an agency that follows
the managerial perspective is said to emphasize
different functions for the sake of specialization,
3David H. Rosenbloom, Public Administration:
Understanding Management. Politics, and Law in the
Public Sector (New York: Random House, 1986).
I
i
j
j
i
3


and to seek efficiency, economy, and effectiveness
in the conduct of government business. The
political approach results in a different type of
organization. Organizations of this type are
intended to enhance administrative responsiveness
and representativeness. Therefore, they are usually
divided by policy or clientele groups.
Acceptance of the legal perspective will result
in a different type of functional separation. This
organization is intended to separate powers to
safeguard against authoritarian or tyrannical
government. The costs of separation of powers may
seem irrational when measured by values of
efficiency and economy. But from the viewpoint of
democratic constitutionalism, it is fully justified.
The legal perspective places a high value on
individual freedom and liberty. This emphasis will
frequently be in conflict with both the managerial
and the political perspectives.
A problem arises when public administration
involves the provision of services or the imposition
of regulations. Constraints on individual freedom
and liberty are imposed in the public interest, and
are usually intended to promote public security,
I
4


safety, health, welfare, and political and economic
viability. As Rosenbloom explains, the conflict
between constitutional values and principles and
public administration is typically over means, not
ends.4
In further explanation of the legal
perspective, Rosenbloom identifies three basic
elements. These are: (1) administrative law (the
promulgation and enforcement of regulations and
rules); (2) judicialization (legal procedures,
processes, and activism); and (3) constitutional
law, especially the personal tort liability of
federal officials. This paper recognizes the
compelling aspects of all three elements of the
legal perspective. Administrative law is a topic of
great importance and it has been the basis of many
books and publications. In this study,
administrative law will be reviewed, but not
examined in detail. Likewise, the trends toward
judicialization and legal proceduralism will only be
briefly treated.
4Ibid.. 438.
5


The focal points of this study are
constitutional and statutory law, particularly as
related to the incidence and effect of tort
liability. This paper examines the incidence of
tort liability and explores and explains the effects
on individual federal employees of a large federal
agency.
The Tort Liability Element of the Legal Perspective
One tangible result of public disaffection with
government is the exponential increase in the
numbers of lawsuits, administrative appeals, and
other legal actions aimed at restraining and
restricting the discretion and activities of public
officials. Many of these lawsuits are initiated by
citizens who allege that the public official is
responsible for an injury of some specified nature.
These are called tort claims or suits. This study
focuses on tort lawsuits which are aimed at
individual governmental employees. These lawsuits
are ordinarily of two types: constitutional law tort
actions, which involve alleged violation of an
Amendment of the U.S. Constitution; and common law
tort action, which alleges harm resulting from
6
I


negligent or wrongful act or omission of a
government employee. Both of these concepts are
explained in detail in this report.
Tort Liability and the Rule of Law
The rule of law requires that officials be
bound by the rules that a democratic society has
imposed upon its public servants, no less than upon
its ether members.5 The rule of law also requires
that significant wrongs be remedied. When the wrong
is the result of violation of a legal standard by a
public official, either the government or the
individual official should be responsible for
redressing the injured party. A basic assumption
underlying this rule is that officials who are
obliged to pay for their "transgressions and errors
will be more law-abiding, advertent, and respectful
of the citizenry."6
Simply put, governmental employees are just as
accountable for their actions as are any other
5Peter H. Schuck, Suing Our Servants: The
Court. Congress. And The Liability Of Public
Officials For Damages. 1980 SUP. CT. REV. 281, The
University of Chicago (1981).
6Ibid., 282.
7


citizen. Immunity from lawsuits brought by others
who are injured by a government employee is not an
entitlement of public employment. However,
legitimate actions of government often adversely
affect some groups or individuals. This paradox
gave rise to the concept of sovereign immunity,
under which some harmful actions of government are
not subject to lawsuit. The application of
sovereign immunity and related concepts which
provide some immunity for certain government agents
and specified government action are explained in
Chapter 3.
The tort claims and suits element of the legal
perspective generally fulfill what Peter Schuck
describes as the social goals of governmental
liability. These goals include:
1. Compensating victims of official misconduct
(the "compensation objective").
2. Discouraging official illegality (the
"deterrence objective").
3. Encouraging officials to execute their
duties in a decisive, selfless, and socially
beneficial manner (the "vigorous decision-
making objective").
4. The shifting of loss to a larger number of
people (the "loss-spreading objective").
8


5. The reinforcement of community sentiments
concerning the morality of certain behavior
(the "moral affirmation objective").
6. Wealth redistribution (the "equity
objective").7
Exploring and explaining the incidence and
effect of personal liability tort suits is the
central purpose of this study. In addition, the
case law and changes in the way the courts have
viewed liability, over time, is also important to
the study. These complex topics are briefly
described in the section that follows.
Tort Liability of Governmental Employees
The official position of the government
regarding employee tort liability is ambiguous,
confusing, and changeable. In cases of apparent
misuse of power by executive branch officials, both
the federal courts and Congress have acted to
correct the official wrongdoing. Government
employees who abuse their power are liable in
personal tort liability lawsuits for their actions.
However, in the governing process fallible
human beings are asked to make complex judgments
7Ibid., 285.
9


about poorly defined, conflicting social interests
committed by law to their protection. In a
litigious environment, government employees are
concerned that they might be required to defend
every act and decision in court, and about being
required to pay large damage claims. The
implication for public administration is that
individuals who are troubled about the risk of a
personal lawsuit over actions taken in the line of
duty may be reluctant to vigorously perform official
duties.
These concerns were reflected in the public
debate before passage of the Federal Employees
Liability Reform and Tort Compensation Act of 1988
(hereafter called the 1988 Reform Act). In
testimony, the U.S. Attorney General said:
. . lawsuits against federal employees in
their personal capacity now constitute a major
impediment to the effective conduct of the
public's business and enforcement of the
law.8,9 8 9
8U.S., Department of Justice, Statement of
Policy Concerning Indemnification of Department of
Justice Employees. 51 Federal Register 27021, 27022,
July 29, 1986.
9The 1988 Reform Act specifically applies to
the "personal common law liability" of federal
employees. U.S., Congress, "Federal Employees
10
I


In a hearing before the Subcommittee On
Administrative Law and Government Relations, Senator
Grassley testified that:
Federal employees are being increasingly sued
for decisions made during the course of a work-
day, just doing their job. From forest ranger
to Director of the National Cancer Institute,
from meat inspector to Cabinet officer, our
entire Federal workforce is potentially liable
for decisions made in carrying out Federal
missions.10 11 12
After the hearings, the Act was passed with
overwhelming support. In regard to personal tort
liability, the introductory language of the 1988
Reform Act states:
The prospect of such liability will seriously
undermine the morale and well being of Federal
employees, impede the ability of agencies to
carry out their missions, and diminish the
vitality of the Federal Tort Claims Act . .
as the proper remedy for Federal employee
torts.11,12
Liability Reform and Tort Compensation Act of 1988",
Pub. L. 100-694, Sec. 2(a)(3), 100th Cong., Nov. 18,
1988, (codified at 102 Stat. 4563, which amends
U.S.C. 2679).
10U.S., Congress, House, Legislation To Amend
The Federal Tort Claims Act: Hearing on H.R. 358
Before The Subcommittee On Administrative Law and
Governmental Relations. 100th Cong., 2d Sess., 1988.
11Suora. note 7, section 2(a)(6).
12However, the Act does not "extend or apply to
a civil action against an employee of the Government
which is brought for a violation of the Constitution
11


The federal judiciary is also troubled about
the personal effects of tort liability judgments and
financial losses on federal employees. Judges have
written that exposure to personal liability deters
many talented and capable individuals from seeking
office or accepting governmental positions. In this
regard, Judge Learned Hand, wrote:
to submit all officials, and the innocent as
well as the guilty, to the burden of a trial
and to the inevitable danger of its outcome,
would dampen the ardor of all but the most
resolute or the most irresponsible, in the
unflinching discharge of their duties.13 *
The Supreme Court included this rationale in
its landmark liability decision in Barr v. Matteou.
when it stated "the threat of liability . could
impede the effective administration of government."
Many who study and write about public
administration believe that liability for torts
resulting from official action is critically
important to public managers. For example, Peter
Brown asserts that expanding official liability may
of the United States."
13Judge Learned Hand, in Gregoire v. Biddle. 177
F.2d 579 (2d Cir. 1949), cert, denied. 339 U.S. 949
(1950).
U360 U.S. 564 (1959).
12


inhibit adoption of beneficial innovative policies.
He believes this restricts the ability of government
to respond to problems confronting society.15
As mentioned previously, there is a dilemma
between cost-conscious and economically efficient
public administration and the values of democratic
constitutionalism. Rosenbloom suggests that making
individual government employees personally liable
for their actions is one means for resolving the
conflict and providing a balance between the need to
protect the rights of individuals and the efficient
and politically responsive conduct of government.
This viewpoint suggests the following public
administration guestions for examination in this
study:
Do any of the social goals listed by
Schuck relate to behavior of public officials?
Does the threat or incidence of personal
liability for injury resulting from an official
act discourage officials from acting illegally?
15Peter G. Brown, Personal Liability of Public
Officials. Sovereign Immunity and Compensation for
Loss (Law and Ethics Series No. 1, Academy for Con-
temporary Problems, Columbus, OH, 1977) .
13


Does existence of a compensation mechanism
affect vigorous decision-making?
Are officials aware of their liability
risks and, if so, how do they respond?
Study Objectives and Hypothesis
To answer these questions it must first be
determined whether or not federal officials are
aware of, interested in, and knowledgeable of the
legal requirements and ramifications of their
actions. Then, it must be determined if they engage
in "legally defensive behaviors" to protect
themselves or their agency in legal challenges, as
they perform their duties. This exploration and
explanation of tort risk and its effect on
government operations is the primary objective of
the study. If legally defensive behavior is
employed, the study attempts to determine the rea-
sons why individuals behave in these ways. The
specific focus is whether concern about personal
tort liability causes behavior changes or has
impacts on achieving agency missions.
As discussed previously, court decisions,
public administration articles, internal government
14


letters and memos, and Congressional testimony
frequently assert that personal tort liability
adversely affects the practice of public
administration. Professor Schuck suggests that tort
doctrine has advanced the compensation, loss
spreading, and deterrence of illegality objectives.
Then he asks the rhetorical question, "However, has
this been done at the expense of vigorous decision
making and moral goal?"16
Others have based their answers to Schuck's
question on assumptions about the adverse impacts of
tort liability on public administration. These are,
as far as could be determined, unsupported by
empirical studies or objective investigations.
Critical questions needing examination are: do
street level officials actually recognize the need
to protect constitutional and common law rights of
individual members of the public whom they regulate
and whose interests they administer? If they do,
are they uncertain about what behavior is correct?
And, when faced with the potential for personal
16Schuck, supra note 3, 287.
15


risk, do they act to minimize hazards to personal
interests?
The research for this study was undertaken to
determine if there is an impartial, measurable basis
for assertions that caution on the part of public
officials, concerned about personal liability,
reduces their willingness to pursue their agency
missions. The research was narrowed to a federal
agency with major property management
responsibilities and a high degree of personal
public contact. The agency selected for study is
the U.S. Forest Service, in the Department of
Agriculture.
The study results should make it possible to
either support or reject the hypothesis that an
increased incidence of personal tort suits against
federal employees has resulted in an increased
incidence of legally defensive behaviors among
employees in this large agency.
In the course of seeking to prove or disprove
this hypothesis, the following research questions
are addressed:
16


1. What legal doctrines and principles govern
the liabilities of federal government employees, and
how have these doctrines evolved over time?
2. Has there been a documentable rise in the
incidence of personal suits against federal
employees; and if so, over what period of time?
3. During this same period, has there also
been a rise in what the literature describes as
"legally defensive behaviors" among selected federal
employees?
4. If such a rise is perceived by federal
employees to have occurred, to what causes do they
attribute it?
5. Is concern over tort liability among these
causes; and if so, how significant a role has it
played in encouraging legally defensive
administrative behaviors, relative to other
identified causes of behavior change?
The Research Approach
This study focuses upon the personal tort
liability of federal employees for actions arguably
taken during the performance of their duties. The
legal bases of tort liability are comprehensively
17


explained because they are crucial to understanding
how the courts apply the doctrines. Tort liability
lawsuits against individual federal officials spring
from either the 1988 Reform Act, or the U.S.
Constitution (Bivens-type claims).17 Government
liability lawsuits arise from either of these two
legal bases, or the Federal Tort Claims Act (FTCA).
In rare instances tort liability of individual
federal officials can also stem from the FTCA.
The methodology of the study includes:
1. A review, summary, and critique of the
public administration, administrative law, and
federal employee tort liability literature. This is
included in Chapter 2, along with descriptions of
current laws, regulations, and leading judicial case
law. Chapter 2 provides a basic understanding of
the legal authorities and issues of the many court
decisions. Some writers attribute legally defensive
behaviors to the tension between the exercise of
agency discretion and the authorizing statutes.
^Constitutional law tort liability is defined
in Bivens v. Six Unknown Agents of the Federal
Bureau of Narcotics. 403 U.S. 388 (1971). This case
and its progeny are explained fully in Chapter 3 of
this report.
18


Review and analysis of administrative law research
and comment provides a perspective for this aspect
of behavior. Literature reporting occurrences of
legally defensive actions by federal employees
helped formulate survey guestions and identify
underlying assumptions about employee actions.
Review of public administration literature provides
the context in which to view legally defensive
behaviors.
2. A description of the historical development
and use of personal and government tort liability.
This is presented in Chapter 3, which traces both
federal employee and government tort liability from
the beginning to the present. Personal tort
liability is reviewed in detail. This material
helps answer pertinent questions such as: What
procedures exist for injured parties and for
resolution of conflicts? What is the applicable
formal law, the legal basis for suits, and the
legitimacy of the approach? What is the case law
and how has it changed over time? What is the
impact of society on the law, and the impact of tort
liability suits on the government? And, how do
19


decisions of the courts affect individual federal
employees sued for tort liability?
Decisions in official liability cases,
especially those of the Supreme Court, appear to
usually favor individual civil rights provided under
the Constitution. The courts pay little attention
to the economic costs to society of securing those
rights. Decisions of the courts have reduced
absolute immunity of government officials to a
qualified immunity, in civil suits for damages.
This is an attempt to prevent government officials
from violating an individual's constitutional civil
rights.
Public officials have always been personally
responsible results of any actions which are beyond
the scope of their duties. They may also be liable
for damages if they knew, or reasonably should have
known, their action abridged someone's civil rights
provided by the Constitution. Such rights have a
monetary value. An agency may deny responsibility
or find the employee acted beyond the scope of
employment. If so, the individual is personally
responsible for paying damages to the injured party.
In the Supreme Court's view this approach:
20


in addition to compensating victims, serves as
a deterrent purpose that . should create an
incentive for officials who may harbor doubts
about the lawfulness of their intended actions
to err on the side of protecting citizen's
constitutional rights. 8
3. A description and analysis of trends in
numbers, causes of action, and types of federal tort
liability lawsuits. This is presented in Chapter 4,
where the incidence of tort liability suits is
analyzed by use of data from the Annual Report of
the Administrator of the U.S. Courts. Statistical
data, charts, and graphs show legal action in
federal courts over the past 30 years. It is clear
from these data that the incidence of tort liability
lawsuits has increased and is still rising. There
are many more lawsuits against federal employees
today than thirty years ago. This information
improves the understanding how federal lawsuits in
general, and tort liability suits in particular,
affect the funding, workload, and mission of federal
agencies.
4. The procedures used to test the hypothesis
and the results are described in Chapter 5. A 18
18Carlson v. Green. 446 U.S. 14, 21 (1980); Owen
v. City of Independence. 445 U.S. 622, 652 (1980).
21


questionnaire and in-depth interview instrument were
used to determine the interest, knowledge, and
awareness of personal tort liability risks of U.S.
Forest Service (USFS) employees. The employees were
asked about their personal involvement in, or
knowledge of, tort liability suits. They were
questioned about their concerns over personal
liability. They were asked how they perceive the
effects of personal liability upon their performance
and upon protection of rights of the public they
serve. Many respondents added personal notes to the
questionnaire. Others volunteered to be interviewed
by telephone. These individuals described their
concern, uncertainty, and distress over the
increasing incidence of liability and other types of
legal action they are subjected to. Many said their
behavior has changed or been affected by concerns
about personal tort liability. In the telephone
interviews the employee was asked what legally
defensive behaviors are use, and the reasons for
them.
The survey results include a discussion of the
public administration behavior that Loren Smith
22


calls iudicialization.19 In judicialized agencies
officials are perceived as commonly going to great
lengths to prepare for anticipated legal challenges.
Written documents include detailed and lengthy legal
rationales to sway judges in imagined challenges in
future courts. Decisionmakers often delay actions,
spread the responsibility, or pass the decision on
to other organizations. In some cases they refuse
to act, in others they put off decision while
collecting volumes of information.20 This results
in a sort of torpor which reduces creativity and
innovation, and willingness to take risks.21
The survey also examines some effects suggested
by Freedman, who suggests that challenges to agency
discretion may reduce the effectiveness of employees
19The term describes expanding use of trial-like
procedures for making governmental decisions, and
the rise of "overproceduralization and excessive
complexity in the process of making public policy
decisions." Loren A. Smith, Judicialization: The
Twilight of Administrative Law. 1985 DUKE L. JOUR.
427, 428 (1985).
20Charles A. Reich, The Law of the Planned
Society. 75 YALE L. JOUR. 1227, p. 1236, (1966).
21Rosenbloom, supra. note 2.
23


I
in carrying out their responsibilities.22 Disputes
over agency legitimacy can cause personnel to become
dispirited. As a result their expertise may be
reduced or unused. Freedman argues that increased
legislative or court imposed control and
accountability of the agencies also increases
conformity to bureaucratic norms, routinizes
processes, and requires formalistic adherence to
rules.23 Increased control of the agencies reduces
the discretion exercised by the individual employee.
As explained later, an agency is exempt from FTCA
liability only if discretion is exercised. Thus, an
22James 0. Freedman, Crisis and Legitimacy in
the Administrative Process. 27 STANFORD L. REV.,
1041 (1975) .
23Examples of legislation enacted to increase
control and ensure procedural conformity include:
the Freedom of Information Act, 81 Stat 54 (1967), 5
U.S.C. § 552 (1982); the National Environmental
Policy Act, 83 Stat. 852 (1970), 42 U.S.C. §§ 4321-
4347; the Federal Advisory Committee Act, 86 Stat.
770 (1972), 5 U.S.C. app. 979-86 (1982); the Privacy
Act, 88 Stat. 1896 (1974), 5 U.S.C. § 552a (1982);
the Government In Sunshine Act, 90 Stat. 1241
(1976), 5 U.S.C. §§ 551-552, 552b, 556-557, 5 U.S.C.
app. § 10 at 983, and 39 U.S.C. § 410 (1982); and
the Ethics In Government Act, 92 Stat. 1824 (1978),
2 U.S.C. §§ 118a, 288-288m, 701-709, 5 U.S.C. §
5316, 5 U.S.C. app. at 1005-06, 18 U.S.C. § 207, 28
U.S.C. §§ 49, 528-529, 591-598, 1364, 28 U.S.C. app.
at 427-435, and 39 U.S.C. §§ 3210, 3216, 3219
(1982) .
24


agency may benefit if it increases the formalistic
adherence to rules by its "street-level
bureaucracy."24 This can create a tradeoff between
liability protection and achievement of agency
mission and goals.
5. An examination of other types of legal
action or administrative constraints that may cause
legally defensive actions is also included in
Chapter 5. In the telephone interviews and written
notes, respondents described legally defensive
actions attributed to personal tort liability and
those from other causes. For example, legally
defensive decisions and actions of respondents may
be associated with political reprisal, lack of
funding, administrative law challenges, unclear
statutory mandates, or other reasons. The
24The terms "street level bureaucrat" or "street
level official" are used interchangeably. See
Daniel A. Mazmanian and Paul A. Sabatier,
Implementation and Public Policy (Dallas: Scott,
Foresman and Co. 1983); Peter H. Schuck, Suing Our
Servants: The Court. Congress, and the Liability of
Public Officials for Damages. 1980 SUP. CT. REV.
281, p. 294, The University of Chicago (1981); and
John D. Kirby, Qualified Immunity for Civil Rights
Violations: Refining the Standard. 75 CORNELL
L.REV., 462, p. 463 (Jan. 1990).
25


respondents were asked to rank, in order of
importance, the causes of legally defensive actions.
The USFS national headquarters and the Office
of General Counsel (the legal advisors to the
Department of Agriculture) supported this study. A
Memorandum of Understanding was executed between the
Forest Service and the author. Agency managers
believe the study will improve employee awareness
and understanding of the risks of personal tort
liability for actions taken during the normal course
of their duty. It is hoped that the study will
dispel unfounded concerns about personal liability,
while providing an understanding of the need to
protect the rights of the public. Additional
training may be provided to ensure that legally
defensive action is taken when necessary and
eliminated when it is not.
Limitations and Delimitations
There is no central federal depository or
record center that maintains cumulative statistical
information for the numbers, department or agency
involved, causes of action for liability suits, or
the results of trials. The lack of records
26


constrains empirical analysis of the involvement of
federal officials in liability litigation. The
Annual Reports of the Administrative Office of the
U.S. Courts are the sole source of statistical data
cited by the authors included in the review of
literature. The Annual Reports are highly
aggregated and the data categories do not identify
cases of personal tort liability of federal
employees.
The U.S. Department of Justice (DOJ) is
responsible for defending the named federal
officials. It was initially assumed the DOJ could
provide information about numbers, kinds, and
locations of federal tort liability suits. After
many contacts with DOJ officials it became clear
that the Department does not have time-series
statistical data or publicly available reports on
federal tort liability. However, several of the DOJ
officials who were contacted shared personal, non-
statistical, information on the numbers and trends
of lawsuits. They identified the most commonly
involved agencies, and typical outcomes of liability
suits.
27


The USFS does not summarize or analyze the
content or occurrence of liability suits involving
its employees. However, individual case files for
active, unresolved FTCA claims and liability suits
are kept in the Washington, D.C. headguarters
office. The files include both cases involving
personal tort and governmental tort liability,
dating back to 1979. The case file contains the
details of each claim. The files describe the
locations, types of alleged injuries, and actions on
claims and suits for the past 12 years.
In 1983, the USFS created an automated database
which shows, annually, the types of injury claims,
the numbers initiated, resolved, or settled, and the
USFS administrative unit where the claim originated.
The database and case records were opened for this
study. Data were taken from a random sample of the
case files and automated record reports for selected
years.
The Office of General Counsel (OGC) has kept
limited information on liability suits since 1985.
Their records show the annual number of claims, the
agency involved and the year of initial action. The
28


records are for internal use but summary data were
provided for the study.
There are many similarities and parallels
between the incidence of personal tort liability and
its effects on federal officials and the incidence
for state and local officials. However, this
investigation considers only the incidence and
effects of federal government tort liability.
Because of the constraints of time and funds,
this study was limited to a single federal agency.
This restricts the applicability of the results of
the study to the USFS.
Assumptions and Definitions
Assumptions
Assumptions that are critical to this study
include the following:
1. The USFS employees sampled in this study
represent the entire agency. The conclusions about
tort liability and legally defensive behavior are
generally applicable to the entire agency.
2. Tort liability is a public administration
policy with well-defined theoretical purposes
29


intended to affect and control individual behavior.
Both government and private tort procedures were
developed to ensure that injured parties would be
properly redressed and that those responsible for
the injury would be accountable. Government
liability has special considerations because of the
need for public officials to conduct their duties,
such as regulation and law enforcement, without the
threat of retaliation. Application of tort
liability doctrines to government employees is
intended to protect the civil rights of citizens and
ensure fair and equitable treatment. However,
misuse of liability law has the potential for
negative, unintended consequences. These include
reductions in efficient and effective performance of
duties.
3. The questionnaires were sent to a random
sample of USFS employees to obtain empirical data
about legally defensive behaviors. The USFS was
selected because it is one of the largest federal
civilian agencies. The agency is charged with
management of valuable federal property and with
regulation of the uses of this property. The
employees of the USFS are commonly in personal
30


contact with members of the using public. It is
assumed that the results of the study could be
applied in a limited way to some other federal
agencies, especially those with similar missions and
interactions with the public. These agencies
include, but are not limited to, the National Park
Service, Bureau of Land Management, Corps of
Engineers, U.S. Fish and Wildlife Service, and
Bureau of Reclamation.
Definitions
Some terms used in this introduction, and in
the case law descriptions and analyses which follow,
require definition. This ensures clear meanings and
usages. The underlying principle used in these
definitions is that the terms should be
understandable to the professional governmental
manager. Therefore, the definitions are working
terms, rather than strictly legal ones.
Tort. A tort is a wrongful act which results
in injury to another's person, property, reputation,
status or estate. The complaining party may be
entitled to compensation for injuries suffered.
31


Liability. Liability describes a legal
obligation or responsibility of an individual or the
government to another individual(s) It is usually
an obligation to pay money damages and is
disadvantageous to the individual or entity which
must pay. Official liability means liability
attaching to individual government officials in
damage actions brought against them in their
individual capacities for conduct taken within the
scope of their employment. The term governmental
liability means liability attaching to the federal
government in damage actions brought against it.25
Common law tort liability. This liability
results from civil actions brought against
government officials under the Federal Employees
Liability Reform and Tort Compensation Act of 1988.
These claims allege a negligent or wrongful act or
omission of an employee of the government acting
within the scope of office or employment.26 If the
25Schuck, supra note 23, 281, footnote 1.
26Supra. note 7, Pub. L. 100-694, Sec. 5;
William T. Cornell, An Evaluation of the Federal
Employees Liability Reform and Tort Compensation
Act: Congress' Response to Westfall v. Erwin. Notes.
26 SAN DIEGO L. REV. 137 (1989); Osborne M.
Reynolds, Jr., The Discretionary Function Exception
32


defendant employee can prove that the alleged act
was within the scope of employment, the federal
government is substituted as the defendant. A trial
may be required to determine if the employee acted
within the scope of employment. In some cases both
the government and the plaintiff may oppose the
federal employee in this determination.
Constitutional law tort liability. This
liability results from civil actions brought against
federal officials for alleged violations of any
Amendment of the U.S. Constitution. Federal
constitutional liability cases are also called
Bivens-type actions in this study.27
Discretionary function. This is a concept
arising from both personal liability and
of the Federal Tort Claims Act: Time for Recon-
sideration 42 OKLA. L. REV. 459 (1989) ; Ronald A.
Cass, "The Discretionary Function Exception to the
Federal Tort Claims Act", Report to the Admin-
istrative Conference of the United States
(Washington, D.C., undated).
27Bivens. supra note 15. This definition is
based upon that used by Perry M. Rosen, The Bivens
Constitutional Tort; An Unfulfilled Promise. 67
NO.CAROLINA L. REV. 337, p. 338 (1989); and W. Mark
Smith, Damages or NothingThe Efficacy of the
Bivens-Type Remedy. Notes, 64 CORNELL L. REV. 667,
p. 668 (1979).
33


administrative case law. It is codified in the FTCA
statute. It refers to the authority of public
officials to decide whether jurisdiction exists and
to determine the limits of their authority. The
right to exercise discretion includes the right to
make mistakes, even those which result in injury to
others.28
Immunity. Immunity is a special privilege
provided to public officials or governments that
exempts them from suits or liability under civil
law. This privilege protects them in the
performance of specified duties.
Sovereign immunity is a term which stems from
the concept that the "King can do no wrong." As
used in this paper it means that suits against the
United States and/or its employees are barred unless
Congress has expressly consented to the suit.
28See the FTCA, 28 U.S.C. 2680 (a); Ravonier v.
United States. 353 U.S. 315 (1954) ; United States v.
S.A. Empresa de Viacao Aerea Rio Grandense. (Varig
Airlines Case). 467 U.S. 797 (1984); and Berkovitz
v. United States. 108 S.Ct. 1954, 1958 (1988). The
discretionary function exception is discussed at
length in Orval E. Jones, Tort Immunity of Federal
Executive Officials; The Mutable Scope of Absolute
Immunity. 37 OKLA. L. REV., 290, p. 291 (1984).
34


Official immunity applies to individual agents
or employees of a government. There are two forms:
absolute immunity and qualified immunity. The
primary distinctions are the functions and
responsibilities of the involved official and the
kind of claim presented. Absolute immunity, is a
total shield from suit because it defeats a suit at
the outset, by a motion of summary judgment to
dismiss. This immunity is given to public officials
whose special functions or constitutional status
require the privilege to perform effectively.
Individuals who have absolute immunity include:
legislators acting in their legislative capacity,
judges engaged in judicial functions, witnesses,
prosecutors engaged in criminal proceedings, jurors
and certain officials of the executive branch
performing similar functions, including prosecutors
and the President.29
29Helen P. McClure, Liability of Administrative
Officials. 53 GEO. WASH. L. REV., 215, (1984-1985);
Barr v. Matteo. 360 U.S. 564, 575 (1969); Pierson v.
Ray, 386 U.S. 547 (1967); Wood v. Strickland. 420
U.S. 308 (1975); and Butz v. Economou. 438 U.S. 478
(1978).
35


Qualified immunity is a limited type of
protection given to public officials performing
duties of the executive branch. These officials are
not immune to suit. However, if they can show in
court that their actions met the criteria for
gualified immunity, they are not liable for
damages.30 The government may also claim qualified
immunity in FTCA cases, under the discretionary
function exception. Government assertions of the
discretionary function exception can be examined by
the court, therefore, the government is not immune
from suit. If the court finds that the employee
exercised discretion in the action causing the
injury, the agency is exempt from liability for
damages.31
Good faith belief. This is a legal concept
arising from the case law. It is used in qualified
immunity arguments and is a subjective determination
30It is not entirely clear that immunity from
suit and immunity from liability are separate
concepts. In Mitchell v. Forsyth. 472 U.S. 511
(1985), the court said that a suit that goes to
trial effectively erases the absolute immunity of
the defendant official. These issues are discussed
at length in Chapter 3, where the leading cases are
explained.
31Berkovitz. supra note 26.
36


of what an official believed or intended was legal
at the time of the action.32
Street level officials. This term refers to
employees who personally deliver basic governmental
services to the public. They perform their duties
with substantial discretion.33 The House of
Representatives refers to these employees as "lower-
level employees; that is the 'rank and file
workers. "34
32Pierson. supra note 27; Scheuer v. Rhodes. 416
U.S. 232 (1974); and Butz. supra note 27.
33Freedman, supra note 20, and Schuck, supra
note 3, 293-94.
34U.S., Congress, House, House Report No. 700,
100th Cong., 2d Sess. 3, 1988.
37


CHAPTER 2
REVIEW OF CURRENT LITERATURE AND RELATED RESEARCH
Introduction
The materials reviewed in this chapter bear
directly upon the hypothesis and research approach
described in Chapter 1. Federal tort liability
laws, regulations, and case law are identified and
summarized. The history and evolution of common law
tort liability and constitutional law tort liability
are described. Explanatory material gained in
personal interviews with involved and knowledgeable
federal officials is included. Questions unanswered
by previous investigations, problems, and unresolved
issues are identified and described. The needs and
unresolved questions addressed by this study are
identified.
Literature and materials related to
administrative law and the tension between the
exercise of agency discretion and constitutionally
prescribed actions of government are reviewed.
Public administration theories of agency power,
decisionmaking, and bureaucratic function are


briefly explained. The organization and mission of
the U.S. Forest Service is explained.
Analysis of Laws. Theories, and Fundamental Concepts
Several statutes authorize tort liability suits
against individual federal employees. Decisions of
the courts determine how the laws are applied and
their effects on federal officials.
Federal Laws and Regulations
During America's first hundred years there was
no statutory process for considering claims against
the government for damages caused by violation of
the Constitution, federal laws, or executive
department regulations. Congress examined each
claim in private bills. The burden of these private
bills became so great that the Tucker Act of 1887,
28 U.S.C. 1491, was enacted. Claims which are:
founded either on the Constitution or any Act
of Congress, or any regulation of an executive
department, upon any express or implied
contract with the United States, or for
liquidated or unliquidated damages in cases not
sounding in tort.
are heard in the U.S. Claims Court. For many years
after its enactment, federal courts held that the
39


Tucker Act only provided jurisdictional rights and
did not, in itself, create any substantive right for
money damages against the government.1 This changed
in 1983, when the Supreme Court found the Act,
"constitutes a waiver of sovereign immunity" for
specified types of claims.2 In the Mitchell II
decision the Court found:
The claims must be one for money damages
against the United States, and the claimant
must demonstrate that the source of substantive
law he relies upon "can fairly be interpreted
as mandating compensation by the Federal
Government for the damages sustained".3
The Federal Torts Claims Act (FTCA), 28 U.S.C.
subsection 1346(b), 2671-2680, provides consent of
the sovereign to be sued for certain actions based
in tort. Congress has attached many terms and
1See, for example, United States v. Testan. 424
U.S. 392 (1976), in which Justice Blackmun wrote,
"The Tucker Act, of course, is itself only a
jurisdictional statute; it does not create any
substantive right enforceable against the United
States for money damages."
2Glen O. Robinson, Ernest Gellhorn, and Harold
H. Bruff, The Administrative Process. West
Publishing Co., (St. Paul, Minnesota: West
Publishing Co., 1986), pp. 864-869, citing the
decision in United States v. Mitchell. 463 U.S. 206
(1983) usually referred to as Mitchell II.
3Ibid., 866, citing Mitchell II.
40


conditions to their waiver of sovereign immunity.
For example, the waiver does not apply to all causes
of action which might exist under state law. It
also excludes suits based on the discretionary
functions of the federal agency. The FTCA accepts
liability against the United States under certain
circumstances that would bring private liability
into existence, but does not create a new cause of
action.4 The FTCA allows an individual to sue the
United States for a "negligent or wrongful act or
omission" of any federal government employee acting
"within the scope of his office or employment." The
government is liable to the same extent that a
private person would be for the same acts. The
liability applies only to government employees and
not to actions of independent contractors of the
government. A claim arising under the FTCA must be
presented within two years to the federal agency
that employed the official alleged to have committed
the tortious action. If the agency denies the
4David W. Furgason and John D. Faught,
"Government Immunity (Federal)", in Government
Torts/Federal, State, and Local. (Denver: Federal
Bar Association, Colorado Chapter, 1980), p. 2.
41


claim, the FTCA court action must be brought within
six months. Under section 1346, jurisdiction for
cases arising under FTCA is placed exclusively with
federal courts. Venue is placed in the district
where the plaintiff resides or where the tort
occurred.
The Federal Employees Liability Reform and Tort
Compensation Act of 1988, (Public Law 100-694, 102
Stat. 4563) is a major amendment of the FTCA.
Occasionally, a federal employee, rather than the
United States, is named as sole defendant in a
common law tort suit. Section 5 of the law amends
28 U.S.C. 2679(b) to provide that the FTCA's remedy
against the United States for negligent or wrongful
acts by government employees acting within the scope
of their employment:
is exclusive of any other civil action or
proceeding for money damages . against the
employee whose act or omission gave rise to the
claim.5
Section 6 of the law implements Section 5's
exclusive-remedy provision. The Attorney General
must certify if "a defendant employee was acting
within the scope of his office or employment at the
28 U.S. C. 2679(b)(1).
42


time of the incident out of which the claim arose. .
. .1,6 The Department of Justice attorneys to whom
the responsibility for issuing the scope
certification is delegated call this the "certify
and substitute" process. It is discussed in detail
Chapter 4.
The Civil Rights Act of 1871, 42 U.S.C. 1983,
(often referred to simply as §1983), is a common
base for personal liability suits against state or
local officials (but not federal officials).
According to this law, every person who "under color
of any statute, ordinance, regulation, custom or
usage" of any state or territory deprives anyone of
"rights, privileges, or immunities" secured by the
U.S. Constitution and laws is liable to the injured
party.6 7 The law places the federal courts between
the states and the people, as guardians of the
people's federal rights. It protects the people
from unconstitutional action and provides a remedy
628 U.S.C. 2679(d)(1), (d)(2).
7Paul T. Hardy and J. Devereux Weeks, Personal
Liability of Public Officials Under Federal Law. 3d
ed. (Athens, Georgia: Carl Vinson Institute of
Government, Univ. of Georgia, 1985).
43


where state law is not adequate. The Act provides
for recovery of damages for deprivation of
constitutional rights. It also allows for liability
for negligence by state or local government
officials, if loss of a constitutional right occurs.
A related law is the Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. 1988, under which
attorney's fees are awarded to prevailing parties.
Title VII, Civil Rights Act of 1964, 42 U.S.C.
2000e-16, as amended, is the principal source of
anti-bias rules for employment practices. The law
applies to employers, labor unions, employment
agencies and apprenticeship committees, in either
the private or public sector. It forbids
discrimination on the basis of race, color, sex,
religion, handicapping condition, national origin,
or age in all areas of the employer-employee
relationship. The 1972 amendments extended coverage
to state and local government employees and set
forth procedures for federal employees to seek
redress of claims in courts. A plaintiff filing
suit in federal court names the head of the
department or agency as defendant. Individual
supervisors, selecting officials, or other
44


individuals accused of discriminatory acts cannot be
named as defendants and are not parties to the suit.
However, an agency may take adverse action against
an individual who has discriminated against another
in violation of this Act.
Equal Employment Opportunity Regulations, 29
C.F.R. 1613, require agencies to establish a
continuing affirmative program for equal opportunity
in employment and personnel operations without
regard to race, color religion, sex, handicapping
condition, national origin or age. These
regulations apply the Civil Rights Act of 1964 to
federal agencies. Federal agencies must administer
equal employment opportunity programs in a positive
and effective manner and assure that established
policies are implemented. The agencies use informal
resolution of complaints, if possible. If informal
procedures fail, formal investigation and settlement
is instituted. Procedures by which injured
employees secure their statutory rights for civil
action in U.S. District Court are spelled out. As
in the Civil Rights Act, agencies may be liable for
injuries, but individual supervisors or employees
who have discriminated are not personally liable.
45


Agency imposed sanctions may apply to individuals
who violate the regulations.
The Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C.
9601 et seq, establishes criminal liability for a
"person in charge of a facility who knowingly fails
to report the release of reportable quantities of a
hazardous substance to the National Response Center.
Civil liability under CERCLA only arises if the
person: (1) owns the land or operate a facility upon
which hazardous wastes have come to be located; (2)
arranged to have hazardous substances at a facility;
or (3) transports hazardous substances to a site.
The Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. 6901, et seq, establishes criminal
liability if a person knowingly generates,
transports, exports, treats, stores, or disposes of
hazardous wastes without the required RCRA permit.
Civil liability is also established for anyone who
violates RCRA permit requirements. However, it is
not clear that this applies to federal employees.
The question would hinge on whether violating a RCRA
permit requirement would be within the scope of an
employee's duties. Federal employees may be subject
46


to sanctions imposed by a federal or state court if
a facility is not in compliance with a court order
regarding facility operation.
The Federal Water Pollution Control Act (CWA),
33 U.S.C. 1251, et seq; the Clean Air Act (CAA), 42
U.S.C. 7401, et seq; and Safe Drinking Water Act
(SDWA), 42 U.S.C. 300f, et seq, all have similar
provisions regarding liability of federal employees.
These acts include statements that release officers,
agents, and employees of the United States from
personal liability for any civil penalty under the
act's provisions, if the employee is acting within
the scope of the official duties. Criminal
liability is provided for any person who negligently
or knowingly violates the requirements of the
statutes. By definition, a criminal action is not
within the scope of an employee's duties.
Administrative Practice and Procedure Policies
for the Department of Justice are found at 28 U.S.C.
516-519. These policies concern representation and
defense of federal employees and the interests of
the United States in litigation. The Attorney
General and the Department of Justice represent
present and former federal employees in suits for
47


injunctions, mandamus and other forms of equitable
relief, if the actions are in connection with their
duties. These policies protect the interest of the
United States by providing representation "where
equitable relief, in fact and in effect, would be
directed against the government."8
Summaries and Critiques of Previous
Materials and Investigations
Studies and Investigations of Official Liability
Most of the material that deals with effects of
official liability upon administrative behavior is
published in law reviews and journals. Official
liability and possible effects on behavior are also
addressed in reports and hearing records of
Congressional committees, and in publications of
government agencies, such as the Administrative
Conference of the United States. The literature
search conducted for this study identified about 100
of these published sources. Many narrowly focus
8John J. Farley, III, who was Director, Torts
Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., provided this interpretation of
the policies in a personal communication, 1987.
48


upon topics unrelated to this investigation. Very
few of the publications that do relate to the study
report empirical observations and analyses of
official liability and its possible behavioral
effects. However, there are several articles and
books that are core sources for understanding the
historical development of official liability, the
evolution of legal opinion, and the current
situation. These are reviewed and critiqued.
This review also includes several personal
interviews of federal officials whose duties include
legal representation of the government and
individuals in tort liability cases. Other
officials whose duties include the administration of
tort claims and who are knowledgeable of the type
and number of tort cases involving individual
employees were interviewed. Private attorneys and
law school faculty under contract to the
Administrative Conference of the United States and
legal counsel for the House Subcommittee on
Administrative Law and Government Relations
explained the processes and results of congressional
inquiry into this topic.
49


Foremost in the published material are the
articles and books of Peter H. Schuck, Associate
Professor of Law, Yale Law School. Professor Schuck
has written extensively on official liability and is
probably the leading authority on the topic. This
investigation includes material from three of
Professor Schuck's publications. These are Suing
Our Servants: The Court. Congress, And The Liability
Of Public Officials For Damages. 1980 SUP. CT. REV.
281 (1981); Federal Tort Claims Act: Hearing on S.
1775. Testimony before the Agency Administration
Subcommittee of the Senate Judiciary Committee (Pt.
2), 97th Cong., 2d Sess. (1982); and Suing
Government: Citizen Remedies For Official Wrongs. 3
YALE L. & POL. REV. 295 (1984). His book Suing
Government. published in 1983, is a followup of the
previously published articles and restates the same
information. In these articles, Professor Shuck
researched the historical development of official
liability, defined immunity and liability, and
provided the theory of liability that was presented
in Chapter 1 of this study. Shuck's theory of
liability clearly states that there is a need to
remedy wrongs caused by officials who violate legal
50


standards. He also recognizes that officials need
to be protected from tort suits when they make
judgments and take actions that are within the scope
of their authority. Without this protection,
government officials would be hesitant to act
effectively and the process of government would be
degraded. There are, of course, many social
interests and public policy values involved in the
balance of protecting individual rights and ensuring
that government officials are not hindered in the
performance of their duties. Shuck included a
limited amount of empirical data regarding the
occurrence of official liability suits in his
publications. He interviewed a small number of
federal officials, and analyzed the probable effects
of liability suit upon "street-level officials"
using the data he developed. He examined
"impressionistic evidence" about the kinds of
officials who are most likely to sued in tort
liability cases. The effects of these suits on the
expected behavior of these officials is described.
He believes that the officials most susceptible to
liability "are not policy-level officials but their
low-level subordinates." His analyses of case law
51


and the limited empirical evidence of the interviews
supports his assertions. He concludes that courses
of action adopted by these street-level officials
are based upon "the goal of minimizing or
eliminating risk of being sued for his decisions."
His asserts that:
Officials have strong incentives to minimize
costsin particular, the risk of personal
liability that their peculiar working milieu
renders quite plausibleeven if that cost
minimization strategy means foregoing social
benefits.9
However, he does not provide empirical support for
this conclusion. Indeed, he says:
No empirical question is more central to an
evaluation of official immunity-liability rules
than this: how do public officials actually
perceive and evaluate the risk of incurring the
costs of being sued for damages?10
This is the central question of this investigation
of legally defensive behavior.
Other authors who believe that liability of
federal officials adversely affects employee
behavior are Thomas J. Madden and Nicholas W.
9Peter H. Schuck, Suing Our Servants: The
Court. Congress, and the Liability of Public
Officials for Damages. 1980 SUP. CT. REV. 281, 308
(1981).
10Ibid. 307.
52


Allard, who wrote "Advice On Official Liability And
Immunity, Background Report 82-6", Administrative
Conference of the United States; Recommendations and
Reports. Volume II. Washington, 1982. The Madden
and Allard article addresses the problems with
current rules of official liability and suggest
alternative public policy responses to the problems.
The article cites the increasing vulnerability of
executive branch officials, at all levels, to money
damages. It includes a cursory examination of "key
concepts" and relevant case law. Previously
reported increases in official liability suits are
verified, using data from the Administrative Office
of the U.S. Courts. Madden and Allard conclude that
the existing liability and immunity rules result in
a non-optimal system of civil sanctions They
recommended a legislative solution, which was
adopted in the 1988 FTCA Reform Act. The assertions
about behavioral effects of personal liability were
not supported by empirical data or statistical
information.
An essay by Ronald A. Cass, "The Discretionary
Function Exception To The Federal Tort Claims Act",
Report to the Administrative Conference of the
53


United States, Washington, undated, examines the
implications of the discretionary function exception
for government and persons affected by government.
Cass explains that the discretionary function
exception amends the jurisdictional grant in the
FTCA by making the Act's waiver of sovereign
immunity inapplicable to:
any claim . . based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty . .
whether or not the discretion involved [was]
abused.11
He then discusses the general considerations
that emerge from the legislative history and case
law of this provision of the FTCA. This section of
the FTCA has been the subject of numerous legal
interpretations and is the source of much confusion
on the part of the courts. It is not entirely clear
whether the individual employee is granted immunity
by the discretionary function exception. Professor
Cass contends that where the government is provided
qualified immunity, on the discretionary authority
argument, the plaintiff is forced to seek
compensation for injuries from the individual
1128 U.S.C. § 2680(a) (1982).
54


federal employee. The defendant employee may then
have to show in court that the actions which caused
the alleged injury were conducted within the scope
of employment. If they were within the scope of
employment the employee would be immune from
liability. Professor Cass interviewed a small
number of government officials. He found that there
is a lack of clear written instructions regarding
delegations of discretion. He concluded that this
could expose some government officials to damage
liability. Cass found that "the adverse effects
from misinterpretation of the exception may be
serious". His article raises disturbing guestions
about the reliance of officials on the discretionary
function. He feels that official behavior is
modified and that there is a causal linkage between
increased risk of personal liability and alterations
of behavior.
Other published material that suggests that
official liability has a direct effect on
administrative behavior include: William T. Cornell,
An Evaluation of The Federal Employees Liability
Reform And Tort Compensation Act: Congress' Response
to Westfall v. Erwin. 26 SAN DIEGO L. REV. 137
55


(1989); John D. Kirby, Qualified Immunity For Civil
Rights Violations: Refining The Standard. 75 CORNELL
L. REV. 462 (1990); Osborne M. Reynolds, The
Discretionary Function Exception Of The Federal Tort
Claims Act: Time For Reconsideration. 42 OKLA. L.
REV. 459 (1989); Perry M. Rosen, The Bivens
Constitutional Tort: An Unfulfilled Promise. 67
NORTH CAROLINA L. REV. 337 (1989); W. Mark Smith,
Damages Or NothingThe Efficacy Of The Bivens-Type
Remedy. Notes, 64 CORNELL L. REV. 667 (1979); David
W. Furgason and John D. Faught, "Government Immunity
(Federal)", in Government Torts/Federal, State, and
Local., Federal Bar Assn., Colo. Chap., Denver, CO,
1980; Loren A. Smith, Judicialization: The Twilight
of Administrative Law. 1985 DUKE L. JOUR. 427
(1985) ; and David H. Rosenbloom, Public
Administration: Understanding Management, Politics,
and Law In The Public Sector. New York: Random House
(1986) . These publications show that definitions of
liability have changed over time and that liability
suits involving federal officials are increasing.
They examine the case law of liability before
passage of the FTCA, the development and application
of FTCA, and the emergence of constitutional law
56


liability with the Bivens case. Changes in
liability have been profound as distinctions between
absolute and qualified immunity have developed.12
Most of these authors include classic case law and
Congressional statements that recognize the
injustice in punishing both officials who act in
good faith (even when their actions may result in
wrongful injury) and those who simply err in their
subjective judgments about the law. However, as
these articles explain, recent Supreme Court
decisions invite litigation against governmental
officials on the basis of alleged constitutional
violations. This conclusion is supported by the
case law analysis presented in Chapter 3. Most of
these writers also conclude that concerns about
personal tort liability causes legally defensive
behaviors that adversely affect public
administration. They usually support their
12Some of these articles incorporate data from
the Administrative Office of the U.S. Courts to
support conclusions that tort actions are
increasingly related to the scope of duties and
on-job decisions of government managers. These data
are presented and analyzed in Chapter 4 of this
report.
57


conclusion by citing these words of Justice
Rehnquist in the Butz v. Economou decision:
[T]here is a potential for disruption of
government by the steady increase of civil
rights based cases. Officials cannot avoid
being aware of this trend and be affected by it
in the pursuit of their duties. Officials will
not only avoid those actions that they should,
it will also inhibit them from arduous
administration when the cases are doubtful or
the official himself is timid.13
However, it must be emphasized that very few of
the authors offer empirical evidence in support of
their beliefs. Those who do attempt to support
their assumptions with empirical data simply parrot
the statistics of the Administrative Office of the
U.S. Courts or public pronouncements of the
Department of Justice.
In his talk, "The Representation and Defense of
the Federal Employee by the Department of Justice",
a presentation at the Workshop of Federal Executive
Development, Summer, 1987, John J. Farley, III,
explained the evolution of federal immunity and
related case law. He described Department of
Justice processes for determining whether to defend
13Butz V. Economou. 438 U.S. 478, 522-24
(1978)(Rehnquist, J., concurring in part and
dissenting in part, joined by Burger, C.J., Stewart,
J., and Stevens, J.).
58


an employee involved in a tort claim suit. Farley
explained theories of federal torts, qualified and
absolute immunity. Mr. Farley also testified before
Congress and was influential in securing passage of
the Federal Employees Liability Reform and Tort
Compensation Act of 1988. His testimony (and that
of many others) about the expected effects of
Westfall v. Erwinu. is published in Legislation To
Amend The Federal Tort Claims Act: Hearing on H.R.
358 Before The Subcommittee On Administrative Law
and Governmental Relations. 100th Cong., 2d Sess.
(1988); H.R. REP. NO. 700, 100th Cong., 2d Sess.
(1988); and 134 CONG. REC. S15,597-15,600 (daily ed.
Oct. 12, 1988).
These Congressional reports also trace the
history and discuss potential behavioral effects of
Westfall v. Erwin. They identify the expected
classes and types of officials anticipated as
defendants in liability lawsuits (especially low-
level officials), offer anecdotal or impressionistic
scenarios of reduced morale in the federal
workforce, and emphasize the adverse results on
U484 U.S. 292 (1988).
59


administration of federal programs and
implementation of policy. Similar descriptions of
liability suits, expected effects upon federal
employees, and numbers of Bivens type claims were
published in 51 Federal Register 27021, No. 145,
July 29, 1986. This is the Statement of Policy of
the Attorney General preparatory to amendment of 28
U.S.C. 50. It provides the Administrative Practice
and Procedures for Tort Claims involving government
employees.
The Helen P. McClure article, Liability of
Administrative Officials. 53 GEO. WASHINGTON L.
REV., Nos. 1-2, 206-229, (Nov. 1984-Jan. 1985),
includes a complete annotated review and
cross-referenced description of recent liability and
tort claim case law. She describes the development
and meaning of FTCA and explains the relation of the
Act to concepts of sovereign and official immunity.
McClure analyzes the leading case law dealing with
personal liability of federal officials in extensive
detail.
Orval E. Jones, Tort Immunity of Federal
Executive Officials: The Mutable Scope of Absolute
Immunity. 37 OKLA. L. REV., 285-315, (Summer, 1984),
60


explains distinctions between liability and
immunity, and the importance to federal executives.
He describes the FTCA and development of the
absolute immunity doctrine. Jones focuses on court
decisions that tend to destroy the absolute immunity
defense. He explains the need to distinguish
between constitutional and common law tort actions
in immunity doctrines.
Other materials reviewed for their historical
and descriptive perspectives of official liability
include: Paul A. Svoboda, Protecting Visitors to
National Recreational Areas Under the Federal Tort
Claims Act.. 84 COL. L. REV., 1792-1812, (Nov.
1984). Svoboda discusses Congressional intents,
FTCA hearings, and relationships of federal and
state tort claims. The article deals with liability
and immunities developed from case law involving
federal lands and uses. A booklet by Paul T. Hardy
and J. Devereux Weeks, Personal Liability of Public
Officials Under Federal Law. Carl Vinson Institute
of Government, University of Georgia, 3d ed.,
(1985), frames problems of personal liability under
FTCA. It deals extensively with civil rights
violations and constitutional law violations. The
61


major case analyzed is Scheuer v. Rhodes. The
article explains the requirements for "good faith"
and "discretion", as related to development of the
qualified immunity doctrine. The dominant
characteristic of federal litigation, according to
Judge Abram Chayes, is vindication of constitutional
or statutory policies. His article, The Role of the
Judge in Public Law Litigation. 89 HAR. L. REV., No.
7, 1281 (1976), presents this view in the context of
class action suits. He explains one source of
potential liability of federal officials. Chayes
provides a theory of trial and appellate law, and
advances the notion that federal officials act, in
part, as a result of judicial interpretations of
similar situations in bureaucratic programs.
Studies in Administrative Law
Administrative law, by which the courts and
Congress seek to control agency discretion in the
executive branch, is also a potential source of
legally defensive behavior. The exercise of agency
discretion requires accountability, foresight of
anticipated effects of decisions, and public
notification of proposed actions. The courts have
62


consistently required agencies to develop procedures
that make their decisions fairly predictable and
rational. Agencies that are charged with protecting
public interests must provide interested individuals
with a means of participating in decisions which
affect them.15 There is a large body of
administrative law literature that addresses
conflicts between agency discretion and concepts of
constitutional representative government. Much of
this material concerns historical development of
agency discretion, problems and failures of agency
actions, and responses of the Courts in dealing with
conflict, all of which are beyond the scope of this
study. However, some of the articles and books do
address the behavioral responses of individual
officials, and their agencies, to increased judicial
activism and the legal defense of their decisions.
These include: Richard B. Stewart, The Reformation
of American Administrative Law. 88 HARVARD L. REV.
1667, (1975) and Vermont Yankee and the Evolution of
Administrative Procedures. 91 HARVARD L. REV. 1804,
15James 0. Freedman, Crisis and Legitimacy in
the Administrative Process. 27 STANFORD L. REV.,
1041, 1042 (1975).
63


(1978); James O. Freedman, Crisis and Legitimacy in
the Administrative Process. 27 STANFORD L. REV.,
1041, (1975); Dwight Waldo, The Enterprise of Public
Administration. Novato, CA: Chandler & Sharp
Publishers, 65, 66, (1981); Daniel A. Mazmanian and
Paul A. Sabatier, Implementation and Public Policy.
Dallas, TX; Scott, Foresman and Co, 4-8, (1983);
Charles A. Reich, The Law of the Planned Society. 75
YALE L. JOUR. 1227, (1966); James E. Anderson,
Public Policy-Making. New York: Holt, Rinehart and
Winston, 84, (1984); Theodore Lowi, The End of
Liberalism: The Second Republic of the United
States, New York: W.W. Norton & Co., 92-95 (1979);
and the previously cited Loren Smith article.
Several of these writers also describe a
"traditional model" of administrative law and
address the dichotomy between regulation and
individual freedoms. Others closely examine abuses
of power that result from agency discretion.
Another article by Richard B. Stewart, Regulation.
Innovation and Administrative Law: A Conceptual
Framework. 69 CAL. L. REV., 1256, No. 5 (Sept.
1981) examines relationships of productivity,
expansion of federal regulation, market economy
64


externalities, social benefits, and health and
safety. Stewart argues that regulation inhibits
innovative problem solution and does not allow the
market to work. Regulation is viewed as legalistic
rather than substantive solution. The article
provides an innovative view of performance
standards, externalization of problems, and use of
non-compliance fees and damage awards to reduce
regulation.
In The End of Liberalism, Theodore Lowi
explains the ideology of delegation of power and
the empowerment of agencies. He also discusses the
history of the delegation phenomenon. The evolution
of administrative law, as it relates to delegations
of power occupies a central place in David H.
Rosenbloom, Public Administration: Understanding
Management, Politics, and Law in the Public Sector.
New York: Random House, (1986). Michael S. Hamilton
examines bureaucratic behavior in "Regulation of
Power Plant Siting: Decision Making in Search of
the Public Interest", Doctoral Dissertation,
Colorado State University, (1984). He found
traditional theories for policy making, such as
scientific management, are supplanted by a political
65


process for determining "public interest" that is
heavily laden with judicial-like procedures.
Traditional Studies of Public Administration
Public administration literature generally
deals with effectiveness and efficiency of handling
power and daily chores of administering large
organizations. It appears from the literature that
traditional public administration is based upon
acceptance of the legitimacy of agency discretion.
Some writers address both efficient application of
delegated power and its legitimate use. Max Weber,
The Theory of Social and Economic Organization. New
York: Free Press, (1947), translated and edited by
A.M. Henderson and Talcott Parsons, was concerned
with legal and rational quality of administration
and with legitimacy of the right of administrators
to help make and implement public policies. Dwight
Waldo's The Enterprise of Public Administration.
Novato, CA: Chandler & Sharp Publishers, (1981),
picks up this concern and uses it as a central
theme. Judith A. Merkle, Management and Ideology.
Berkeley, CA: Univ. of Calif Press, (1980),
describes the ideology of scientific management and
66


identifies dangers of substituting centralization,
control and rational planning for leadership of
elected policy makers. Her study provides
theoretical reinforcement of the need for a legal
basis for bureaucracy.
The societal acceptance of scientific
management, with its values of efficiency and
economy, have had effects on both the constitutional
basis and the moral/ethical values of government.
Several writers address these issues. These
include: Louis C. Gawthrop, Public Sector
Management, Systems and Ethics. Bloomington, Ind.:
Indiana Univ. Press, (1984); Jack Rabin and James S.
Bowman, eds. Woodrow Wilson and American Public
Administration. New York: Marcel Dekker, Inc.
(1984) ; William L. Morrow, Public Administration:
Politics and the Political System. New York: Random
House, (1975); and Aaron Wildavsky, "Rescuing Policy
Analysis from PPBS", Public Administration Review,
vol. 29, no. 2, March/April, 1969.
Glen 0. Robinson, Ernest Gellhorn and Harold H.
Bruff The Administrative Process. St. Paul
Minnesota, West Publishing Company, 3rd ed. (1986),
outline and analyze of pertinent literature and case
67


law of tort liability. The sections that explain
liability in the public sector and those concerning
administrative processes are useful in understanding
how judicialization is embedded in public
management.
Several articles addressed the emerging use of
procedural devices by citizens who are dissatisfied
with traditional agency decision process. These
include Roger C. Cramton, A Comment on Trial-Type
Hearings in Nuclear Power Plant Sitings. 58 VIR. L.
REV. 585, (1972), and Charles Reich, The Law of the
Planned Society, cited previously. Both writers
analyze case law to support their contention that
public participation is increased by agencies whose
scientific and technical decisions are challenged in
trial-type proceedings.
The literature reviewed for this study includes
many models and prescriptions for "proper" public
administration. Most of these urge public managers
to take a business-like approach and to separate the
making of laws from their administration and
implementation. In my opinion, this leads to an
emphasis on economic efficiency and a prescription
for objective and rational processes in
68


decisionmaking. The literature which dealt with
these aspects of public administration included:
Woodrow Wilson, "The Study of Administration,"
Political Science Quarterly. 56 (December, 1941):
494, (originally copyrighted in 1887); Robert Fried,
Performance in American Bureaucracy. Boston:
Little, Brown and Company (1976); Andrew Leigh, in
"Making Decisions in the Public Sector," Personnel
Management. Dec. 1983, pp. 38-31. An interesting
article by Judge David L. Bazelon, The Impact of the
Courts on Public Administration. 52 IND. L. JOUR.,
101, 1976-77, describes the role of courts in
litigation involving governmental regulation.
Bazelon argues that technical decisions should be
ventilated in a public forum and that government
regulations need to be based firmly on science. His
argument relies upon analysis of Ethyl Corp. v. EPA.
541 F.2d 1, (DC Cir. 1976)(en banc), cert, denied.
96 S.Ct., 2663 (1976).
In opposition, Reich and Cramton describe these
prescriptions as "the myth of objective, rational
processes for decisionmaking." The previously
identified works of Stewart, Smith, Lowi, and
Mazmanian and Sabatier argue that the thesis of
69


economic efficiency and separation of implementation
from formulation has failed and needs to be replaced
with new theories that emphasize legal rights and
procedures. These writers seem to believe the
proper model for an agency is the judicial system.
They argue that all discretionary decisions should
be prepared for their eventual testing in courts of
law. Under their theory, the principles of
administrative case law are the standards by which
agencies are measured.
Studies of the U.S. Forest Service
Because the U.S. Forest Service (USFS) is the
primary focus of the field research, literature
which deals with its administration, managerial
behavior and organizational values was reviewed and
included. USFS organization and management styles
are well documented by Glen 0. Robinson, The Forest
Service. A Study in Public Land Management.
Baltimore, Johns Hopkins University Press for
Resources for the Future (1975), and Harold K.
Steen, The U.S. Forest Service. A History. Seattle,
Univ. of Washington Press (1976). The classic study
of the Forest Service is Herbert Kaufman's The
70


Forest Ranger, A Study in Administrative Behavior.
Baltimore, Johns Hopkins University Press for
Resources for the Future (1960). Kaufman used a
case-study approach to develop a broad sociological
view of administrative behavior of Forest Service
employees that still is valuable today.
Challenges to the exercise of discretionary
authority are explained by Paul J. Culhane, Public
Lands Politics. Interest Group Influence on the
Forest Service and the Bureau of Land Management.
Baltimore, Johns Hopkins University Press for
Resources for the Future (1981). Culhane discussed
the clashing interests, policy controversies, agency
capture, and responses to legal standards, including
"overbureaucratization" which result from
administrative law decisions. Malcolm Rupert
Cutler's doctoral thesis "A Study of Litigation
Related to Management of Forest Service Administered
Lands and Its Effect on Policy Decisions, Part Two:
A Comparison of Four Cases", Michigan State
University, Department of Resource Development
(1972), is a case-study of four federal lawsuits
involving conflicts between the Forest Service and
citizen groups interested in preservation and
71


environmental protection. Cutler proposed many
changes in USFS procedures, such as greater
involvement of users in planning and provision of
time for these groups to "conduct thorough adversary
analyses." These are of great interest to this
study because he later was able to implement many of
the changes as Assistant Secretary of Agriculture,
overseeing the Forest Service. Charles F. Wilkinson
and H. Michael Anderson, Land and Resource Planning
in the National Forests. 64 ORE. L. REV., Vol. 64,
No. 1&2, (1985) explored the effects of litigation
on USFS autonomy, including legal requirements for
the agency to expand due process and to include
opposing views of natural resource management. They
described the perceived evolution of policy and
explain effects of conflicts and legal challenges on
USFS management.
Agency Records and Interview Results
Interviews and materials obtained from agency
records are an important part of this investigation.
Many of the conclusions of this investigation are
based on information obtained in interviews of
Department of Justice attorneys and administrators,
72


Department of Agriculture legal counsel, Forest
Service program administrators, and other officials
familiar with the issues. All of these individuals
provided relevant and timely information on the
current state of personal liability of federal
officials. Forest Service records of FTCA claims
and lawsuits are included, as are data provided by
the U.S.D.A. Office of General Counsel. The Annual
Reports of the Director of the Administrative Office
of the United States Courts for the years 1959-89
were examined. These reports provide yearly
statistics, including the total number of civil
cases filed, the cases where the federal government
is a defendant, the cases where the FTCA provides a
basis for a tort claim against the government, and
civil rights cases where a federal question was
involved. These data are cited by many of the
authors of published materials identified
previously. Although highly aggregated and devoid
of information that would identify the federal
agency or Department involved, these data are
useful.
73


I
Unresolved Issues. Significant Problems, and
Unanswered Questions of Previous Studies
The most serious problem of the articles and books
reviewed for this study is that they do not include
empirical data supporting the conclusions regarding
effects of tort liability upon federal officials.
The same problem is found in the testimony provided
to Congress and the statements of the various
Senators and Congressmen. The Congressional Reports
are consistent in their assertion that personal tort
liability adversely affects the performance of
government officials. But none offer substantial
support for their opinions. Some investigators base
their conclusions, at least in part, on interviews
of federal officials. None of these writers
described the methodology of their research, and few
provide objective results of formal study.
The materials that concern administrative law
are complete, but fail to consider potential effects
of personal liability. The authors of these studies
seem unconcerned, or unaware, of the
interrelationship that exists between the exercise
of discretion and personal liability litigation.
The potential for personal liability litigation to
I
74


affect administrative effectiveness and efficiency
is recognized by these writers. However, they
mostly ignore the impacts of the time and costs of
responding to tort liability suits on the exercise
of discretion.
Most public administration and administrative
behavior literature omits any consideration of
either administrative law or personal liability.
David Rosenbloom is one of the few who suggests that
legal aspects of the daily life of public officials
should be considered.
There are many candidates for generally
accepted theories of bureaucratic behavior, but none
have been well accepted. The economic models of
such behavior yield few testable propositions. The
proponents of this approach seem to agree that
officials seek to maximize something, but what that
something is remains elusive. Other theories of
governmental decision making are based upon various
models of behavior, some of which seem plausible,
but are only partial and incomplete.
75


Needs Which This Investigation Will Fulfill
There is an unquestioned need to examine the
assertions cited in the literature and other
materials reviewed for this study. The potential
for tort liability can arise from almost any
activity in which government is involved. The
officials who deliver our most basic government
services are especially vulnerable to claims of
injury and negligence.
It is evident that the behavior of public
officials is influenced by a number of factors,
including scarcity of resources, political and legal
constraints, the operational environment, and the
nature of the objectives they are expected to
pursue. The "Decisional Calculus of the Public
Official", a concept found in Schuck,16 must also
include the possibility that officials will adopt a
course of action based upon a desire to minimize or
eliminate the risk of personal liability for injury
resulting from their decisions. Indirect evidence
of behavioral effects of personal liability based
16Peter H. Schuck, Suing Our Servants: The
Court. Congress, And The Liability Of Public
Officials For Damages. 1980 SUPREME CT. REV., 281,
305 (1981).
76


upon laws, court decisions, and current directives
that control the personal liability of government
officials needs to be supported by more quantifiable
research. This study contributes to this need by
interviews of affected officials and an analysis of
the empirical data which results. The need to
respond to the unanswered questions and problems of
previous investigations is the basis of this study.
It is oriented toward development of formal theory
that can expand understanding of public management,
in general, and help predict and control public
sector performance. If the outcomes of official
liability occur as hypothesized, a shift in theories
of public administration may be needed.
Summary
Nearly all of the written material reviewed
concludes that personal liability suits increased in
the past decade; that federal officials, especially
those at the street level, modified their
administrative behavior as a result; all agree that
definitions of liability and immunity have changed
drastically over time and that these changes confuse
judges, lawmakers, and administrators alike. The
77


potential for disruption of government is
characterized as high. The Congress has accepted
this view and has attempted to reduce the threat.
Many publications that treat administrative law were
reviewed. These show that there is a close relation
between challenges to administrative discretion and
governmental liabilityan aspect of personal
liability under the FTCA and its many amendments.
Public administration literature reviewed for
this investigation deals primarily with delegation
and use of power, performance models for
administrators, reactions to the scientific
management movement, and rational decision making in
government. Few of these identify or recognize the
occurrence of legally defensive behavior on the part
of public employees.
The history and functional operation of the
U.S. Forest Service is explained in materials
reviewed. Some basis for an expected behavioral
change, as Forest Service managers are drawn into
the legal realm, is provided. Interviews and
examination of available records contribute to this
study.
78


Unresolved issues, problems and unanswered
questions left by previous studies are identified
and serve as a rational basis for this
investigation.
79


CHAPTER 3
HISTORICAL DEVELOPMENT OF PERSONAL TORT
LIABILITY DOCTRINES
Introduction
The material in this chapter is included
because it bears directly upon the research issues
identified in Chapter 1. These include: (1) the
history of the legal doctrines of personal tort
liability of federal officials; (2) the trends and
developments in the types of suits, the numbers of
suits, the causes of action, and the decisions of
the courts that make up the body of case law; and
(3) the effects or impacts of personal tort
liability upon the federal officials who are
involved (or who may be involved) as defendants in a
tort suit.
The discussions of case law and Congressional
action that follows is complicated and tangled for
those unschooled in tort liability law. In an
attempt to improve the comprehension of this
difficult presentation two major themes are
presented. The first is a historical review of
common law tort liability of federal officials. The


second theme is of constitutional law tort liability
of federal employees.
Common law tort liability of federal officials
begins before the American Revolution. European
tort law, especially English Common Law, was the
foundation of the American system. Constitutional
law tort, of course, did not exist prior to 1787.
Because it is older and has influenced the
application of constitutional law tort liability,
this discussion treats common law tort liability
first.
Common Law Tort Liability
For discussion purposes in this paper, common
law tort liability is divided into three time
periods. These are: 1776-1946; 1946-1988; and 1988-
present. These periods correspond to significant
changes in federal laws that govern these types of
torts.
In the first period the case law deals
primarily with application of sovereign immunity and
the tentative development of various types of
immunity for government officials who act for the
sovereign in the conduct of their duty. This period
81


includes the application of the Tucker Act of 1887,
discussed previously in Chapter 2.
The second period begins with the Federal Tort
Claims Act, 28 U.S.C. 1346 (hereafter, referred to
as FTCA). As explained in Chapter 2, the FTCA
provides a partial waiver of sovereign immunity and
allows for liability suits against the government or
its agents. Case law during this period is mostly
concerned with interpretation and application of the
FTCA. During this time the Supreme Court
established the principle of absolute immunity from
tort liability for federal officials who were acting
within the scope of their employment. This period
ended with the Supreme Court decision in Westfall v.
Erwin. 484 U.S. 292 (1988).
The third period covers the short time since
passage of the Federal Employees Liability Reform
and Tort Compensation Act of 1988, 28 U.S.C. 2679
(b), et seq. This is the period following the
Westfall case. It is explained in detail because it
changed the doctrine of absolute immunity, resulted
in a major amendment to the FTCA, and moved the
Courts toward a new kind of qualified immunity for
government employees.
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Constitutional Law Tort Liability
Constitutional law tort liability is rooted in
the Civil Rights Act of 1871, 42 U.S.C. 1983
(hereafter referred to as § 1983). As explained in
Chapter 2, this law interposes the federal courts
between the people and state or local government
officials, when federal constitutional rights are
abridged. Because this law was not recognized nor
well enforced until 1961, this paper begins the
discussion of its development at that date.
The case law discussion is divided into two
time periods. The first, 1961-1971 deals with
application of § 1983 of the Civil Rights Act in
alleged violations by state and local government
officials. The courts struggled to define the
limits of liability and the types of immunity that
these government officials should have if they
violated federal constitutional civil rights in the
course of their duty.
The second, and current period, began in 1971,
when the Supreme Court made federal officials
equally liable for unconstitutional violations of
the rights of American citizens. This occurred in
the landmark case of Bivens v. Six Unknown Named
83


Agents of the Federal Bureau of Narcotics. 403 U.S.
388 (1971). That case and those subsequent to it,
deal with definitions of absolute immunity for
federal officials and the development of the new
concept of qualified immunity.
Table 3.1 summarizes the types of injury, and
liability for the common law and constitutional Law
torts, by time period.
Table 3.1. Type of tort liability, harm, and
assignment of liability, by time periods._______
Type of tort liabili ty Types of tort harm and assignment of liability by time periods
Common law tort 1776-1946 1946-1988 1988-1991
Personal injury, property loss or damage. Gov. claims Sovereign Immunity. Employee liable, even if acting within scope of duties. FTCA passed. Gov. partially waives Sov. Immunity, is liable for some injury and loss, subject to discretionary function exception. Employees given absolute immunity if within scope of authority. Westfall case reduces absolute immunity for employees. Reform Act passed to protect those within scope of authority and using discretion. Gov. still liable as before under FTCA. Courts move toward qualified immunity for employees.
Constitutional law tort 1887-1961 1961-1971 1971-1991
No basis for tort claims or suits. But Civil Rights Act § 1983 provides statutory protection. § 1983 applied to state and local gov. officials. Individuals liable for Const, civil rights violations, i.e. -search & seizure, -free speech, -right to assembly, -voting rights Bivens case makes federal officials liable for Const, civil rights violations on same basis as state and local officials. Court creates qualified immunity defense for officials.
84


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