united states - u.s. department of justice · 2010. 10. 12. · vol 37 no january 15 1989 page...

U.S Department of.Justice

Executive Office for United States Attorneys

United States

Attorneys Bulletin

Published by

Executive Office for United States Attorneys Washington DC________ For the use of all U.S Department of Justice Attorneys

LaurenceS McWhorter Director

EXECUTIVE Editorin-Chief Manuel Rodriguez FTS 633-4024OFFICE FOR Editor Judith Beeman FTS 673-6348

Editorial Assistant Audrey Williams FTS 673-6348

ATTORNEYSTABLE OF CONTENTS Page

COMMENDATIONSPERSONNIIEGISI.ATIONPOINTS TO REMEMBER

Attorney General Advisory CommitteecareerOpportunitiesChapter 12 JURIS FileConsolidation Of Monetary Recovery Functions 10

Court-Ordered Video Taping Of MaterialWitnesses In Immigration Cases 11

Criminal Civil Rights Statutes 11

Draft Payment Program 12

Necessity For Increased Attention In

Identifying Appellants In Notices Of Appeal 13

Procedures For Handling Special Assessment Payments 15

Statistical Reporting On OCDETF Cases 16

TaxClassifications 17

United States Attorneys Bulletin 19

United States Attorneys Seal 19

CASE NOTESCivil Division 20

Criminal Division 31

Land And Natural Resources Division 32

Tax Division 34

APPENDIXCumulative List Of Changing FederalCivil Postjudgment Interest Rates 38

List Of United States Attorneys 39

VOLUME 37 NO THIRTY-SIXTH YEAR JANUARY 15 1989

VOL 37 NO JANUARY 15 1989 PAGE

COMMENDATIONS

The following Assistant United States Attorneys have been commended

Karen Atkinson Florida Robert Cornell FloridaSouthern District by Thomas Southern District by Billy

Cash Special Agent in Charge Morrison Regional Inspector

DEA Miami for her assist- IRS Chamblee Georgia for

ance in an investigation in- his cooperation in an under

volving an international co cover investigation of illegal

caine smuggling organization drug trafficking by IRS employees in Fort Lauderdale

Dawn Bowen Florida Southern

District by Joe VaughnSpecial Attorney Organized Virginia Covington FloridaCrime and Racketeering Sec- Middle District by George

tion Miami Strike Force for Campbell Acting Special Agent

her assistance in the prepara- in Charge U.S Customs Serv

tion of an appellate brief in ice Tampa for obtaining

complex criminal case $1.75 million settlement in

civil forfeiture matter AlsoDonna Bucella Florida by Robert Butler Special

Southern District by John Agent in Charge FBI TampaLyons Jr Assistant United for her valuable assistance in

States Attorney Northern Dis the seizure of property owned

trict of California San Fran- by narcotics trafficker

cisco for her cooperationwith DEA agents in multi-

count drug conspiracy case Jeffrey Downing Florida Middle District by Michael

Robert Ciaffa Florida South- Vigil Group Supervisor En-

em District by William forcement Group One DEA/Miami

Hendrickson Special Agent in Field Division Drug Enforce-

Charge Office of Export En- ment Administration Miamiforcement Des Plaines Illi- for his participation in the

nois for his successful pros success of an air smuggling

secution of criminal case investigation

Thomas Connelly District Eric Dubelier Floridaof Arizona by Frank Shoe- Southern District by Patrick

maker Jr Senior Resident OBrien Special Agent in

Agent Fish and Wildlife Serv- Charge U.S Customs Service

ice Department of Interior Miami for his excellent coop-

Mesa for his valuable assist eration in complex under

ance in number of investiga- cover criminal investigation

tive matters

VOL 37 NO JAMJARY 15 1989 PAGE

Miriam Duke Georgia Mid- Lark Ingram Georgia Nor-die District by Weldon them District by MichaelKennedy Special Agent in Barrett Office of The JudgeCharge FBI Atlanta for her Advocate General Departmentsuperior performance in the of the Air Force Washingtoninvestigation and successful D.C for her assistance inprosecution of an enormous obtaining dismissal of civildrug smuggling operation case

Kenneth Fiinberg District Wendy Jacobus Florida South-of Colorado by William Ses- em District by Dr Lowreysions Director FBI for his Shropshire Assistant Profeslegal skills and expertise in sor of Pediatrics Virginiathe prosecution of an environ- Commonwealth University Rich-mental crime case mond for her legal skill in

obtaining settlement ofJames Genco District of medical malpractice suitConnecticut by GaryMathison Regional Inspector Frederick Kramer andGeneral for Investigations William McAbee GeorgiaU.S Department of Education Southern District1 by JosephBoston for his successful Davis Assistant Director-prosecution of student Legal Counsel FBI Washing-financial assistance fraud ton D.C for their particase cipation in the New Agents

Moot Court Program held at theDale Goldberg Ohio South- FBI Academyem District by BobbySiller Supervisory Senior Arthur Leach GeorgiaResident Agent FBI Cincin- Southern District by Paulnati for his outstanding Williams District Directorpresentation in civil IRS Atlanta for his successhearing ful prosecution of tax eva

sion case

Mark Greenberg Texas Wes Lawrence Lee Georgia South-tern District by Gary em District by StephenAnderson Assistant Regional Collins Claims AttorneyCounsel General Legal Serv- Department of the Army Fortices IRS Dallas for ob Stewart for his excellenttaming favorable decision representation in the prosecuin an age discrimination case tion of civil case

Thomas Hopkins California Ethan LevinEpstien DistrictEastern District by William of Connecticut by PaulSessions Director FBI for Adams Inspector General Dehis successful prosecution of partntent of Housing and Urban

pharmaceutical theft case at Development Washington D.Cthe Tracy California Army for his successful prosecutionDepot of criminal fraud case

VOL 37 NO JAIIJARY 15 1989 PAGE

Cerise LimEpstein District Thomas Mulvihill Floridaof Massachusetts by Gerald Southern District by Thomas

Mulligan President First Cash Special Agent in ChargeMutual of Boston for her Drug Enforcement Administra

legal skill and expertise in tion Miami for his efforts

prosecuting bank fraud case and dedication in the prosecution of complex cocaine

Gale McKenzie and Debbie smuggling case in Fort LauderCremeans Georgia Northern daleDistrict by Charles GillumInspector General Small Business Administration Washing- Susan Nellor District of

ton D.C for their prepara- Columbia by Robert Beuleytion of complex case for the Inspector General Department

grand jury and for obtaining of Agriculture Washingtonindictments D.C for her excellent repre

sentation in an age discriMichael L. Martinez District mination case Also by Cal-

of Columbia by James.G Her yin Ninomiya Chief Counsel

gen Assistant Legal Adviser Bureau of the Public Debt Defor Consular Affairs Depart partment of the Treasury for

ment of State Washington her success in obtaining disD.C for his excellent repre inissal of civil actionsentation in an oral argumentduring TRO hearing

Charles Niven and Algert

Joseph Mistrett and Joseph Agricola Jr Alabama Middle

Guerra III New York Wes- District by Thomas Wellstern District by Joseph Director Alabama Department

Davis Assistant Director- of Public Safety for their

Legal Counsel FBI Washing- valuable contribution to the

ton D.C for their parti- Felony Awareness Patrol Train

cipation in the New Agents ing programMoot Court Program held at the

FBI AcademyEileen OConnor and Mark

Jeffrey Moon District of Fabelson Florida Southern

Columbia by Admiral District by Jack KippenWest Jr Naval Military Per be.rger Special Agent in

sonnel Command Department of Charge U.S Secret Servicethe Navy Washington D.C Miami for their valuable

for his excellent representa assistance in counterfeit

tion in complicated termina currency manufacturing investion case tigation in Fort Lauderdale


Anne Perry District of David Risley Illinois CenNevada by Stephen Narchetta tral District was awardedRegional Inspector General for the Inspector Generals In-Investigations Small Business tegrity Award by RichardAdministration San Francisco Kusserow Inspector Generalfor her successful prosecution Department of Health and Humanof an SBA loan and multiple Services Chicago for hisbankruptcy fraud case dedication to criminal and

civil prosecution cases inRichard Poole Florida volving the Medicare programMiddle District by JamesPulliam Jr Regional Direc- Jeffrey Robbins District oftor Fish and Wildlife Serv- Massachusetts by Jamesice Department of Interior Ahearn Special Agent inAtlanta for his success in Charge FBI Boston for histhe prosecution of develop- excellent representation inment corporation for violation the trial of Federal Tortof the Endangered Species Act Claims Act case

Richard Reback and Linda Robert Rosenberg FloridaHalpern District of Colum- Southern District was awardedbia by Dennis Bitz Deputy Certificate of ConunendaAssistant Secretary for Space tion by James Kilbourneand Defense Power Systems Assistant Chief Wildlife andOffice of Nuclear Energy De- Marine Resources Section Landpartment of Energy Washing- and Natural Resources Diviton D.C for obtaining dis- sion Department of Justicemissal of civil case for his outstanding assistance

and supportRichard Reback and JohnCleary District of Columbia David Sarnacki Wisconsinby Charles McManus Coun- Western District by Clairsel Naval Supply Systems Com- Cripe General Counsel Fedmand Department of the Navy eral Bureau of Prisons DeWashington D.C for their partment of Justice for hisexcellent representation in representation in the prosecupreliminary injunction and tion of complex civil claimTRO proceedings case

Richard Reback District of Whitney Schmidt FloridaColumbia by Colonel James Middle District by WilliamBabin Chief Contract Law White Acting Assistant SecreDivision Office of The Judge tary Labor-Management Stan-Advocate General Department dards Department of Laborof the Air Force Washington Washington D.C for his valuD.C for his outstanding able assistance in the proserepresentation in two civil cution of labor union coractions involving air carriers ruption caseand contract dispute

VOL 37 NO JAIUARY 15 1989 PAGE

John Smith and Albert Rat- Robert Storch Floridaliff Texas Southern Dis- Middle District by Robert

trict by Andrew Duff in Genzman United States Attor

Special Agent in Charge FBI ney for his outstanding per-

Houston for their exceptional formance in the research and

performance in the prosecution preparation of legal documents

of bank fraud case during the course of majorcocaine smuggling case

Christian Stickan and James

Lynch Ohio Northern Dis- Frank Tamen Florida Southern

trict by Nichols Re- District by Windsor

gional Inspector General for Chief Special Investigations

Investigations Department of Division Metro-Dade Police

Labor Chicago for their Department Miami for his

success in the prosecution of successful prosecution of two

complicated government con- major criminal investigations

struction contract fraud case on behalf of the MultiAgencyAuto Theft Task Force

Gregory Whitehair Districtof Colorado and David Zugschwerdt Land and Natural Resources Division Department of

Justice by John ArthurIII Project Manager UraniumMill Tailings Project OfficeDepartment of Energy Albu

querque for their successful

defense of complex mining

company case

PERSONNEL

On January 14 1989 charles Sheehy became Acting United

States Attorney for the Western Distriôt of Pennsylvania


LEGISLATION

Federal Employees Liability Reform and Tort Compensation Act

On November 22 1988 Assistant Attorney General JohnBolton issued memorandum advising that the Federal EmployeesLiability Reform and Tort Compensation Act of 1988 was enacted onNovember 18 1988 The memorandum provides extensive guidance onthe relevant legal issues as well as copy of the Act the legislative history and sample pleadings Additional guidance suggestions and sample pleadings such as those recently filed inthe Westfall case are attached as Exhibit to the Appendix ofthis Bulletin

The Office of Legislative Affairs has asked that the Constitutional Tort Staff of the Torts Branch collect statisticalinformation on the impact of the Westfall legislation You arerequested to submit report containing the following informationto the attention of Marilyn Burton Box 7146 Benjamin FranklinStation Washington D.C 20044 FTS 7247020

The name and number of each caseremoved from state court pursuantto the new statute in which motion to substitute the United Statesfor individual defendants was filed

The name and number of each casefiled or pending in federal district court in which such motionwas filed

The name and number of each casepending on appeal in which motionto substitute the United States forindividual defendants was filed orin which remand was sought forconsideration of such motion

Civil Division


POINTS TO REMEMBER

AttorneY Generals Advisory CommitteeOf United States Attorneys

Attorney General Dick Thornburgh has appointed four new

members to the Attorney Generals Advisory Committee of United

States Attorneys The new members are

Deborah Daniels Southern District of Indiana

David Levi Eastern District of California

Michael Moore Northern District of Florida

Joseph Whittle Western District of Kentucky

Other members of the Committee

Robert Ulrich Chairman Western District of Missouri

Stephen McNaiuee Vice Chairman District of Arizona

James Richmond Vice Chairman Northern Districtof Indiana

Robert Bonner Central District of California

William Carpenter District of Delaware

Henry Hudson Eastern District of VirginiaCharles Larson Northern District of Iowa

Andrew Maloney Eastern District of New York

Sessions III Southern District of Alabama

Anton Valukas Northern District of Illinois

John Volz Eastern District of Louisiana

Jay Stephens ex officio District of Columbia

Chairman Robert Ulrich was unanimously reelected to third

term as Chairman on December 13 1988 The Vice Chairmen for

1989 are Stephen McNamee and James Richmond

The Advisory Committee was formed in September 1973 as

mechanism to include the United States Attorneys in formulating

Department policy It serves the Attorney General by informing

him of problems experienced by United States Attorneys as the

Nations principle litigators and by making recommendations to

the Attorney General It also serves the United States Attorneys

The Committee coordinates the collective efforts of the United

States Attorneys with the divisions agencies of the Department

of Justice and departments and agencies external to the Department of Justice The Committee represents the United States

Attorneys with the Department of Justice other departments and

agencies of the government and occasionally private organizations New members are appointed each year to provide for broad

representation of United States Attorneys nationwide


In advising the Attorney General the Committee conductsstudies and makes recommendations to improve management of UnitedStates Attorney operations and the relationship between the Department and the federal prosecutors The Committee also helpsformulate new programs for improvement of the criminal justicesystem and the delivery of legal services at all levels


Career Opportunities

Federal Bureau of Prisons

The Office of Attorney Personnel Management Department ofJustice is seeking an experienced attorney for the Federal Bureau of Prisons LaborManagement Relations -Section in Washington D.C The applicant will provide advice and assistance toapproximately 55 field facilities prisons and regional officesin all areas pertaining to labor/management relations The applicant will represent the interest of the- agency at third partyhearings before Arbitrators the Merit Systems Protection Boardthe Federal Labor Relations Authority and the Equal EmploymentOpportunity Commission Also the applicant will advise management during negotiations of local supplemental agreements Travelto field locations is required approximately 50 percent of thetime Applicants must possess J.D degree and be an activemember of the bar in good standing The position will be at theGS-12 GS13 or GMl3 level and is open until filled

Please submit resume or SF-l7l Application for FederalEmployment to U.S Department of Justice Federal Bureau ofPrisons 320 First Street N.W Washington D.C 20534 Notelephone calls please

Civil Rights Division

The Complaint Adjudication Office of the Civil Rights Division is seeking six to nine full or part-time law clerks ThisOffice issues the final decision in individual and class complaints of employment discrimination filed by employees of theDepartment of Justice and applicants for positions with the Department These complaints allege discrimination on the basisof race sex color religion national origin age or handicap


and are filed under Title VII of the Civil Rights Act of 1964 42

U.S.C 2000e-16 the Age Discrimination in Employment Act 29

U.S.C 633a or Section 501 of the Rehabilitation Act of 197329 U.S.C 791 The law clerk must analyze facts in an investi

igative file which includes affidavits exhibits personnel documents and in some cases hearing transcripts research rele

vant case law and prepare final written decision including

statement of facts analysis of the facts and case law and

final finding concerning the claim of discrimination The position requires excellent writing research analytical skills

impartiality and the ability to work independently one-year

commitment is required and the starting date is June 1989

Please submit current resume or SFl7l Application for

Federal Employment writing sample and law school transcript

by February 28 1989 to the Complaint Adjudication Office Department of Justice 320 1st Street N.W Room 904 washington

D.C 20534 Attn Susan Berman FTS 724-2240 or Mark Gross FTS6332172

Chapter 12 JURIS File

Laurence McWhorter Director Executive Office for United

States Attorneys issued memorandum on December 23 1988 to

all Civil Division Chiefs and Administrative Officers of the

United States Attorneys offices reminding them that the Affirma

tive Civil Enforcement Subcommittee had requested that family

farmer bankruptcy decisions be submitted for inclusion in the

JURIS Chapter 12 Bankruptcy file This request was sent to all

United States Attorneys by teletype in January 1988 but insufficient material was received to make this valuable resource tool

Douglas Semisch Assistant United States Attorney District

of Nebraska is coordinating this project and has volunteered to

screen all decisions sent to him for substantive or procedural

issues which would warrant inclusion in JURIS Please forward

any Chapter 12 bankruptcy decisions reported or unreported to

Mr Semisch P.O Box 1228 DTS Omaha Nebraska 68101 FTS8644774 Mr Semisch will contact you if he needs additional

memoranda or pleadings to be included with any decision selected

for the JURIS file Our goal is to create and maintain comprehensive Chapter 12 JURIS file to assist your bankruptcy attor

neys


VOL 37 NO JANUARY 15 1989 PAGE 10

Consolidation Of Monetary Recovery Functions WithinThe United States Attorneys Offices

On December 15 1988 Laurence McWhorter Director of theExecutive Office for United States Attorneys issued memorandumto all United States Attorneys stressing the importance that allresources for monetary recovery workasset forfeiture affirmative civil litigation and civil and criminal collections--beclearly segregated within your offices The additional resourcesreceived from Congress present the United States Attorneys withunique opportunity and tremendous challenge Because of ourability to generate and recover monies for the federal government Congress has given us the opportunity to prove the cost-effectiveness of giving the United States Attorneys resourcesAt the same time they have challenged us to demonstrate ourability to generate additional funds To avoid the loss ofthese resources in the future we must be able to prove thatthese positions were not diverted for other purposes Carefulmanagement of all aspects of your monetary recovery work iscritical if we are to reach our collective goal of $270 millionof additional revenues

Many United States Attorneys who have very effective programs have opted to consolidate all money recovery functionsinto single Financial Litigation Unit or Division This consolidation of the business law expertise into single unit givesthe program greater strength and depth The creation of separate unit clearly demonstrates the priority that is now placedon this function and coordination and cooperation with othercomponents in the office is enhanced

The Financial Litigation Staff is now tasked with the program support of your asset forfeiture and affirmative civil litigation as well as civil and criminal collections efforts BobUlrich Chairman Attorney Generals Advisory Committee recentlyasked the Financial Litigation Subcommittee to broaden its scopeto incorporate all aspects of monetary recovery done by the United States Attorneys In this time of staggering deficits theUnited States Attorneys monetary recovery efforts are highlyvisible The fate of our future resources is tied to our successin recovering additional money for the Asset Forfeiture Fund andthe Treasury The Bureau of Prisons is presently looking to usto create surplus in the Fund to help them overcome the $60million cut to their present appropriations Every facet of ourefforts to bring in revenue will be carefully scrutinized Ifyou have not yet done so you are urged to direct your attentionto making management improvements in this highprofile programarea The strong leadership and personal commitment by everyUnited States Attorney will be necessary if we are to meet thischallenge


Court-Ordered Video Taning Naterial WitnessesIn Inunigration Cases

The Administrative Office of the United States Courts has

advised District Court judges that Rule 15 does not require the

government to pay for material witnesses but that judges could

or4er the government to pay these costs For instance in one

United States Attorneys Office judge has ordered the deposition of material witnesses by video even in instances where both

the United States Attorneys Office and defense counsel objectto the video taping Another United States Attorneys Office has

handled costs associated with this problem by purchasing video

camera and recording their own deposition

Prior to taking action on this matter we need to know the

extent of the problem If your office is not currently experiencing problems in this area what impact would this issue have

on your offices if implemented nationwide by the District Court

judges Please advise Manual Rodriguez Legal Counsel Executive Office for United States Attorneys FTS 6334024


Criminal Civil Rights Statutes

On December 1988 Wm Bradford Reynolds Assistant Attor

ney General Civil Rights Division issued memorandum to All

United States Attorneys concerning recent amendments to the Criminal Civil Rights Statutes Two important changes were made to

18 U.S.C 24l and 242 which are effective as of November 181988 and which apply to any incident otherwise prosecutable under

these statutes which occurs on or after that date Section 241

was altered so that the victim of the civil rights conspiracyneed not be citizen Now any inhabitant of any State Territory or District is protected against conspiracy otherwise

prohibited by the statute This change may have particular impact for prosecutions of incidents at the southern U.S borderSection 242 was also amended to provide for tenyear felonyshould bodily injury result to the victim This amendment should

have dramatIc impact on our enforcement program since most

Section 242 cases now will involve felony as opposed to inisde

meanor violations


Attached as Exhibit at the Appendix of this Bulletin isthe proposed change to the United States Attorneys Manual andthe text of both statutes with the new language in italics andany deleted language in parentheses If you have any questionsplease contact the Chief of the Criminal Section Civil RightsDivision FTS 6333204

Civil Rights Division

Draft Payment Proqram

In August 1987 the Deputy Attorney General directed thatthe United States Marshals Service be relieved of their responsibility to pay litigation invoices for the United States Attorneys Through an expansion of the Draft Payment Program theUnited States Attorneys would pay their own litigation billsThis initiative would allow U.S Marshals Service personnel to beused for other responsibilities would provide greater financialauthority to the United States Attorneys and would enable moreprompt payments to vendors

The Draft Payment Program permits district personnel to locally produce automated drafts checks affiliated with MellonBank to vendors for all litigation bills and services for dollaramounts not to exceed $1500 per transaction The draft paymentsare generated by utilizing the Justice Management Divisions Financial Management Information System draft payment module

On September 21 1987 all United States Attorneys Officeswere informed of the expansion of the Draft Payment Program Administrative officers were notified via teletype of tentativetraining dates and target dates for conversion to the Draft Payment Program and it was recommended that the administrative offcer and one principle attend the training The training programincluded an overview of the Draft Payment Program manual andhands-on experience using the personnel computer to access thedraft payment module During the conversion period three basicproblems surfaced In some districts the personal computersfailed and the hard disk had to be replaced Numerous internalmodems were faulty and had to be replaced Also accessibilityof the Justice Data Center was and continues to be inconsistentthrough the dial-up mode The staff of the Executive Officefor United States Attorneys and the Justice Management Divisionare working to resolve these problems and communications withthe Justice Data Center have slightly improved through the use of


RENEX controllers Sixteen districts are presently being converted to ANET United States Attorneys communications network which will access dedicated lines to the Justice Data

Center. It is anticipated that the dedicated A-NET configuration

will provide the most reliable accessibility for the Draft Payment Program to enter the Justice Data Center and accordingly

it will be expanded

The September 30 1988 deadline by which the United States

Marshals Service would no longer pay United States Attorneys

invoices was met While the Draft Payment Program is far from

perfect most districts have been highly successful As of

November 1988 there have been 47068 drafts issued by the

United States Attorneys offices totalling $10850959.09Joint efforts are continuing to resolve connection problems and

improve service

Attached as Exhibit at the Appendix of this Bulletin is

list of contact points for the Draft Payment Program Additional

questions should be directed to Richard DeHaan FTS 272-6924

Also please contact the Financial Management Staff for assist

ance in identifying your problem and developing solution


Necessity For Increased Attention In

Identifying Appellants In Notices Of Appeal

Rule 3c of the Federal Rules of Appellate Procedure states

that notice of appeal shall specify the party or parties

taking the appeal The Supreme Courts recent decision in

Torres Oakland Scavenger Co 108 S.Ct 2405 June 24 1988will require us all to exercise additional care to ensure this

requirement is met In Torres 16 persons sought to intervene as

plaintiffs in an ongoing employment discrimination suit The

district court dismissed their complaint and they then filed

notice of appeal The caption of their notice identified the

appellants as the first named intervenor et al The body of

the notice listed the appellants as 15 of the 16 intervenors

without using et al Because of secretarys clerical errorTorres name was omitted from the list Construing Rule 3cthe Supreme Court held The failure to name party in notice

of appeal constitutes failure of that party to appeal108 S.Ct 2407 The Court also held that the defect was not

cured by the use of et al at 2409


similar problem arose in Akins Board of Gov of StateColleges and Universities 840 F.2d 1371 7th Cir 1988 certgranted vacated and remanded No 8841 U.S Oct 31 1988There the district court dismissed claim for injunctive reliefand damages brought by 10 former students against college off i-cials The caption of the students notice of appeal listed theappellants as Robin Akins et al and the text continued Notice is hereby given that Robin Akins the plaintiff named abovehereby appeals 840 F.2d 1371 n.l The Seventh Circuitheld that this notice was marginally adequate to constitute anappeal by all 10 plaintiffs under rule of liberal constructionwhere the plaintiffs intent was clear and the defendants werenot prejudiced The Supreme Court however summarily vacatedthat decision and remanded for consideration of Torres Thonly safe course after Torres and Akins is for our notices ofappeal to list individually every party on whose behalf we areappealing

Special care will be required to avoid omitting any of theirnames The phrase et al should only be used in the captionwhen all of the appellants are accurately and individually identified in the body of the notice Akins shows that the issue ofwhether notice is effective to confer appellate jurisdictionover all the parties is particularly important where money damages are sought In Bivens cases and other cases where damagesare sought against government officials in their individual capacities careless omission of the name of one of the officialsyou represent can lead to the forfeiture of his right to appealand his personal liability for damages awarded by the districtcourt

Finally issues regarding the adequacy of notices of appealwill arise both when we are the appellants and when we are theappellees As appellees we should check our adversaries noticesof appeal for possible jurisdictional defects However beforemoving to dismiss an appeal discuss the matter with the appropriate appellate attorneys in the Department We should establish consistent policy and advocate positions that should applyregardless of which side of the issue we are on in any givencase

If you have any questions or require additional informationplease call Tony Steinmeyer Assistant Director Appellate StaffCivil Division FTS 6333388

Civil Division


procedures for Handlinq

Special Assessment Payments

On December 23 1988 Katherine Deoudes Associate Dir

ector Financial Litigation Staff Executive Office for United

States Attorneys issued memorandum to all United States Attor

neys in the Ninth Circuit advising that on December 12 1988

the United States Court of Appeals for the Ninth Circuit vacated

in part the sentence in United States German Munoz-Flores No

86-5236 and found 18 U.S.C 3103 to be unconstitutional The

Ninth Circuit found that the special assessment provision is

revenueraising measure that originated in the Senate As suchit violates Article Section of the Constitution which requires all revenueraising bills to originate in the House of

Representatives hearing banc is under consideration but

it is expected that several months may elapse before the question

is finally resolved Effective immediately the following procedures with regard to special assessments should be followed by

the United States Attorneys offices in the Ninth Circuit

Any special assessment to include those referred by

the Central Violations Bureau on defaulted judgmentsthat has been imposed or which is subsequently imposed must be entered on your casetracking systemPlace all newlyimposed and unpaid assessments in suspense pending future resolution of this issue using

event code DDSA Suspense--Special Assessment

Where payment for special assessment has been received by the Financial Litigation Unit but has not

been deposited in the lock box

The payment should be applied to any restitution

fine court costs or costs of prosecution ordered by the Court The defendant is to be informed of this action by letter specifying how

the payment was applied Where one check for the

fine and assessment is received process the payment and request that refund of the assessment

be made to the defendant

If the judgment ordered special assessment

only the payment should be returned to the

defendant


Payments of special assessments that are received bythe Financial Litigation Unit after receipt of thismemorandum should be processed in accordance withparagraph

Payments for special assessments received under theInmate Financial Responsibility Program from theBureau of Prisons or from the IRS Offset Programshould be processed in accordance with paragraphWe are taking steps to stop further payments of special assessments from these sources and we will keepyou informed

Collection procedures of any kind demand lettersgarnishments execution IRS offset etc to recoverspecial assessments should not be initiated until further notice Collection efforts to recover finescourt costs restitution costs of prosecution orbail bond forfeitures will continue

Pending outcome of the appeal no refunds of specialassessments that have been paid are authorized exceptas stated in paragraph 2a Individuals requestingrefunds should place their request in writing andshould be advised to keep the United States AttorneysOffice informed of any change of address

This office should be promptly informed of any lawsuits initiated to recover special assessment

If you have any questions please contact Kathleen Haggertyor Frank Shippen FTS 673-6212 Questions pertaining to systemsprocedures should be directed to the Information Management StaffFTS 6736333

Financial Litigation Staff

Statistical Reporting On Organized Crime DrugEnforcement Task Force OCDETF Cases

On December 13 1988 Attorney General Dick Thornburghissued memorandum to all United States Attorneys requestingthat all of their OCDETF Program statistics be reported intimely manner through the Departments appropriate reportingmechanism Mr Thornburghs memorandum reads as follows


The OCDETF Program is the Governments flagship

operation in the area of drug enforcement Through

your fine efforts and those of the other participating Federal agencies we have achieved tremendous accomplishments in this Program and we wish

to ensure that we are properly recording and communicating the gains we have made However it has

come to our attention that we may be underreporting

some of our OCDETF statistics and we wish to reem

phasize the vital importance of accurately reporting this data As you knowstatistics reported on

cases are basis for measuring our effectiveness

and of course critical resource decisions are

made based upon these statistics

Therefore please make certain that your office is

regularly reporting all of its OCDETF statistics so

that we may ensure that we are properly recordingand communicating our fine efforts to the Congresspublic and news media.

QuØstibns should be directedto Frederick Kramer of the

OCDETF Administrative Staff FTS 6331860

Executive Off ice for United States Attorneys

Tax Classifications

William Rose Jr Assistant Attorney General Tax Divi

sion has advised the following

It has come to the attention of the Tax Division

that because the system of taxpayer accounts

maintained by the Internal Revenue Service IRSdoes not distinguish between interest accrued on

tax liabilities and interest accrued on penaltiesthe amount of interest classified as priority tax

claiming certain proofs of claim filed by the IRS

may have been overstated


In cases where prepetition interest had accrued onpenalties that were not compensatory for actualpecuniary losses the IRS claim may have includedthat amount as priority tax claim The.intereston such penalties should have been treated as anunsecured- general claim We will inform the judgesof all the bankruptcy courts and the Chief CounselIRS is informing his District Counsel of thismatter Since we you and District Counsel attorneys who act as Special Assistant United StatesAttorneys in some districts may currently be defending the accuracy of the IRS proofs of claimwe see no alternative to reviewing those pendingcases to insure that they do not contain the mis-classification error. We will review the casespending in our offices and ask that you review thecases involving Service claims being handled byyour offices

The main thing to look for in pending proofs ofclaim is whether the IRS has asserted claim as anunsecured general claim for penalties If theIRS has asserted such claim and has also asserted

claim for interest as an unsecured priorityclaim it is likely that the priority interestclaim is overstated by the amount of interestaccrued on the penalties IRS has instructed its

Special Procedures personnel to work with ourattorneys in recomputing such proofs of claim tocorrect the classification error The recomputation should not reduce the amount of the totalservice claim but should generally entail onlyreduction in the amount of priority interest claimsand corresponding increase in unsecured generalclaim amounts IRS has instructed its personnel toavoid any such misclassifications in future proofsof claim Finally IRS has informed the Tax Division that it intends to set up procedures including contact points within the IRS for private parties seeking to obtain corrected proofs of claim

If you have any questions please contact the Chief of theapplicable Civil Trial Section in the Tax Division

Tax Division


United States Attorneys Bulletin

The United States Attorneys Bulletin is monthly publication designed to provide and exchange information concerningrecent case law and administrative policies and procedures for

United States Attorneys and their Assistants Our goal is to

provide you with the latest up-to-date information relating to

the Department of Justice and the Offices of the United States

Attorneys

To assist us please complete the questionnaire attached as

Exhibit at the Appendix of this Bulletin and return it to the

Editor United States Attorneys Bulletin Executive Office for

United States Attorneys Room 1629 Department of Justice 9th

and Pennsylvania Avenue N.W Washington D.C 20530 If youhave any questions or wish to discuss the Bulletin please contact Judy Beeman Editor or Audrey Williams Editorial Assistant FTS 6736348 or FTS 6334024

United States Attorneys Seal

The United States Attorneys Seal has been transmitted to

YOU by the Executive Office for United States Attorneys to be

utilized with the Request of United States Attorney for Production of Federal Prisoner in the Custody of the United States

Pursuant to Title 18 U.S.C 3621d It is suggested that youkeep the seal under lock and key and assign specific individuals

the authority to use the seal

form of receipt was also enclosed together with self-

addressed envelope Please sign the receipt and return it at

your earliest convenience Be sure to include the names of the

individuals responsible for the safeguard of the seal If youhave any questions contact Theresa Bertucci Executive Office

for United States Attorneys Room 1619 Department of Justice9th and Pennsylvania Avenue N.W Washington D.C 20530FTS 6332121


CASE NOTES

Civil Division

Supreme Court Holds That Retroactive Rules Must BeAuthorized By Express Grant Of PowerFrom CongressAnd That Retroactive Medicare Cost Limit RuleIssued By The Secretary Of Health And Human ServiceslUllS Is Not So Authorized By The Medicare Act

The question presented in this case is whether the Secretaryof Health and Human Services is precluded from exercising hisauthority under 42 U.S.C 1395xv to promulgate retroactively new wage index cost-limit rule for Medicare reimbursement to hospitals where the new rule readopts prior rulepreviously struck down under the Administrative Procedure ActAPA for failing to issue the original rule with the appropriatenotice and conunent procedures The D.C Circuit held that theretroactive rule was invalid under the APA on grounds that theAPA did not permit retroactive rulemaking The court furtherheld that the retroactive authority accorded the Secretary bySection l395xv ii authorized only corrective retroactiveadjustments to individual providers--not retroactive rules ofgeneral application

The Supreme Court has unanimously affirmed Without directly addressing the APA the Court held that statutory grant ofrulemaking will not be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms The Court held that neither Section1395xv ii nor the Secretarys general rulemaking authorization under the Medicare Act provided this express statutory grant The Court agreed with the court of appeals thatSection 1395xvlAfljj merely permitted the Secretary tomake caseby-case retroactive adjustments to the reimbursementprovided to particular provider and did not permit the Secretary to retroactively adjust method of reimbursement TheCourt expressly declined to defer to the Secretarys statutoryinterpretation which the Court viewed as merely litigationposition

Georgetown University Hospital et al Otis BowenNo 871097 Dec 12 1988 DJ 137161114

Attorneys John Cordes FTS 633-3380Mark Pennak FTS 633-4214


Supreme Court Reverses D.C. Circuit Decision Reciuirjflg Extraordinary Procedures For Removing From Employment Individuals Who Do Not Meet Security Requirements

Pursuant to its enabling legislation Pub No 86-36Sec and regulations the National Security Agency NSA removed the access to Sensitive Coinpartinented Information SCI of

Doe an employee and then removed him from employment since Sd

access is condition of employment at NSA Doe contended that

since his removal was related to national security NSA had authority to remove him only under 50 U.S.C 833 NSAS summary removal statute or under U.S.C 7532 the general sununary removal statute The latter statute permits suspension without paywhen the heads of specified agencies determine that the interestsof national security require summary removal of an employee fromnational security information and positions of special trust It

also requires an internal agency hearing of unspecified scope andfinal decision by the head of the agency to remove an individ

ual from employment The district court held that NSA had authority to remove an employee who poses potential security riskunder its for cause procedures The D.C Circuit reversed andheld that unless NSA uses its own summary removal statute it

must use Section 7532 for any removal that is related to national

security even if the agency head has determined that the interests of national security do not require such summary procedures

The Supreme Court has unanimously agreed with our view thatSection 7532 is neither mandatory nor exclusive and reversed thecourt of appeals decision The Court endorsed the general proposition that the power to remove is inherent in and incident to

the power to hire absent specific provision to the contraryand it found no such provision in this case Accordingly thecourt held that NSAS removal of Doe under its for cause procedures was appropriate and in fact provided more procedural protections than either of the two summary statutes the court of

appeals held must be followed The Court held that the plainlanguage of both summary statutes is permissive and that the

legislative history of both plainly indicates that they wereintended to be additional authorities for removing employees who

posed an immediate threat to national security The Court reaffirmed its statement in Cole Young 351 U.S 536 .546

1956 that in the absence of an immediate threat to national

security normal dismissal procedures are adequate and should be

followed as NSA did here

Carlucci No 87751 Dec 1988DJ 35162424

Attorneys Barbara Herwig FTS 633-5425Freddi Lipstein FTS 633-4815


Fourth Circuit Reverses District Court Decision RefusingTo Enforce Subpoena Issued BY Defense Contract AuditAgency For Income Tax Returns And Financial StatementsOf Defense Contractor

The Defense Contract Audit Agency DCAA the chief auditingcomponent of the Defense Department subpoenaed financial statements and income tax returns of major defense contractor Inthe first case United States Newport News Shipbuilding andDrY Dock Company 837 2d 162 4th Cir 1988 Newport News

in which DCAA had subpoenaed the contractors internal auditreports and workpapers the district court held and the FourthCircuit affirmed that DCAA was not entitled to subpoena suchrecords under its statutory subpoena authority In the governments second subpoena enforcement action decided before theFourth Circuits decision in Newport News the district courtagain held that DCAA was not entitled to subpoena records because they were unnecessary to its task of verifying the accuracy of the cost and price data submitted by the contractor insupport of its cost-based contracts

On appeal the Fourth Circuit has reversed and remandedThe court adopted an expansive interpretation of DCAAs statutorysubpoena authority encompassing right to subpoena income taxreturns and supporting schedules and financial statements Thecourt held that DCAA may subpoena objective factual materialsuseful in verifying direct or indirect costs charged by contractors operating under costtype contracts The court rejected thedistrict courts conclusion that DCAA was entitled to subpoenaonly those materials used by the contractor in developing thecost claims submitted to the government Instead it upheldDCAAs right of access to corroborative information The courtreaffirmed DCAAs right of access to factual information pertaining to indirect costs i.e overhead which is charged to allgovernment contracts It distinguished its decision in NewportNews as based upon subpoena for subjective assessments contained in the work product of contractors personnel notrequest for objective financial and cost data and summaries ofsuch information

United States Neort News Shipbuilding and DryDock Company No 883520 4th Cir Dec 1988DJ 2332791157

Attorneys Leonard Schaitman FTS 633-3441Peter Maier FTS 633-4814

VOL 37 NO JANUARY 15 1989 PAGE23

En Banc Fourth Circuit Reverses Panel AndUpholds AFDC Transfer Of Assets Rules

This case involved challenge to the State of VirginiasAFDC transfer of assets rule which denies eligibility to personswho for the purpose of obtaining AFDC benefits transfer property for less than adequate compensation within two years oftheir application The district court upheld the rule as permissible anti-fraud measure but divided Fourth Circuit panelfound that such rules conflicted with the principle underlyingthe federal AFDC statutes that only those assets that are actually available be taken into account in determining eligibility

The full court voting 7-4 overturned the panel opinion andupheld the rule The court noted that the AFDC program was cooperative venture between the state and federal governments inwhich federal preemption would not lightly be presumed In thiscase the court found that the availability principle has no relation to state transfer of assets rules since the availabilityprinciple prohibits the imputation of resources that were neveravailable to the applicant while transfer of assets rules dealby definition with an applicant who did have property but choseto give it away in order to qualify for undeserved benefits Thecourt also found that the longstanding approval of such rules bythe Secretary of Health and Human Services even though not embodied in regulation was entitled to respect

Deel Jackson No 86-1693 4th CirDec 1988 DJ 137801007

Attorneys Robert Greenspan FTS 633-5428Jacob Lewis FTS 633-4259

Fifth Circuit Reduces Damages In FPCAMedical Malpractice Case As Excessive

This is an FTCA action by the estate and survivors of ShillaWheat Texas woman who died lengthy and painful death fromcervical cancer because of military physicians failure to diagnose the disease The district court awarded damages of $6.7

million apportioned equally between the government and privatedoctor who had also failed to diagnose and treat Mrs Wheat Weargued on appeal that the damages exceeded those permissibleunder statutory cap on medical malpractice damages in Texas

in addition that the damage awards were excessive in lightof those in other comparable cases


The first issue was resolved when the Texas Supreme Courtrecently struck down the malpractice damages cap on state constitutional grounds The Fifth Circuit has now partially acceptedour arguments on excessive damages and has reduced the total damages awarded by $1150000 thus reducing the governments damages by half that amount Despite the fact that it found nosuch high awards in the most closely comparable cases the courtupheld the $3 million award to the estate of Mrs Wheat in lightof the length and seriousness of her suffering The court alsoupheld the award of $1 million to her minor daughter Howeverthe court reduced by half the $1.8 million award to her husbandon the grounds that his suffering was significantly less thanthat of the dead woman herself and that the district courtsaward to him exceeded those to surviving spouses in comparablecases The court also reduced by half the $500000 award to anadult daughter

Wheat United States No 861267 5th CirNov 30 1988 DJ 15776985

Attorneys Robert Greenspan FTS 633-5428Irene Solet FTS 6333355

Sixth Circuit Rules That EAJA Fee Determinations ForAdministrative Adjudications Are Not Judicially Review-able Where The Underlying Agency Merits Decision IsUnreviewable And Rules That The EAJA Fee ProvisionFor Adversary Adjudications Under Section 554 OfThe APA Does Not Permit Fees For Proceedings WhichMerely Resemble But Are Not Actually ConductedUnder Section 554

Plaintiff sought EAJA attorneys fees after he ultimatelysucceeded in administrative proceedings for obtaining benefitsunder the Federal Employees Compensation Act FECA He reliedon U.S.C 504 which allows fees for prevailing party in anagency adversary adjudication defined as an adjudication under section 554 of the APA notice evidentiary hearing on therecord The district court dismissed his appeal from an administrative denial of fees on the basis that by statute U.S.C8124b2 FECA benefits determinations are specifically exempt from the requirements of APA Section 554 and thus are notthe adversary adjudication for which EAJA fees are availableThe Sixth Circuit has now affirmed but on separate jurisdictional ground We pointed out to the court that the EAJA itself


only permits judicial review of an agency fees determination bythe court of the United States having jurisdiction to review themerits of the underlying agency adversary determinationU.S.C 504c2 FECA benefits determinations however arenot judicially reviewable U.S.C 8l28 and accordingly we

argued neither is the attorneys fee determination The courtof appeals embraced this argument and held that review of EAJA

agency fee determinations is precluded wherever the underlyingadministrative decision is unreviewable

Owens Brock No 87-5524 6th CirNov 10 1988 DJ 83729

Attorneys William Kanter FTS 633-1597

Wendy Keats FTS 633-3518

Sixth Circuit Reverses Decision HoldingCorps of Engineers Liable For DamagesCaused By Breakup Of Massive Ice Jam

In 1978 dozen shippers bought suits against the UnitedStates under the Federal Tort Claims Act to recover losses to

cargoes and vessels which were swept away when an ice jam broke

open Plaintiffs theory was that the ice jam was caused by thenegligent operation of the Markland Locks and Dam facility downstream from Cincinnati by the U.S Army Corps of Engineers Thesuits were consolidated for discovery and trial by the Multidistrict Litigation Panel Most of the claimants settled but two

plaintiffs proceeded to lengthy trial The district courtruled in favor of plaintiffs

unanimous panel of the Sixth Circuit has reversed The

panel held that several critical actions of the Corps held to be

negligent by the district court were shielded by the discretionary function exemption including the management of waterfiow at

hydroelectric plant the coordination of ice-passing activitieswith upstream facilities and the failure to adjust ice management operations to accommodate design defects in the Markiand Damfacility

In re Ohio River Disaster Litigation Nos 85-3990854036 and 863216 6th Cir Dec 1978DJ 613139

Attorneys Robert Greenspan FTS 633-5428Bruce Forrest FTS 633-2496

VOL 37 NO JAIIUARY 15 1989 PAGE 26

Seventh Circuit Denies Joint Motion To VacateAs Moot Where Case Was Settled On Apea1

The Department of Health and Human Services HHS throughits fiscal intermediary Blue Cross recouped past Medicare over-payments to Memorial Hospital by withholding current Medicarepayments otherwise owed to Memorial Because Memorial had filed

voluntary petition for bankruptcy before the recoupment itargued that the withholding of post-petition amounts owed tosatisfy pre-petition debt violated the automatic stay provision of the Bankruptcy Act 11 U.S.C 362a The bankruptcyjudge and the district court agreed and held HHS in contempt Wefiled notice of appeal and then negotiated settlement whichprovided Memorial with less relief than the district court ordered HHS was allowed to retain the $62000 that it had alreadyrecouped but agreed not to recoup the remaining $20000 and inaddition paid $11500 to satisfy the district courts award ofcosts and attorneys fees The settlement also resolved an openquestion by providing that Memorial would continue to be Medicare provider in the future As part of the settlement the parties then filed joint motion in the court of appeals to vacatethe district courts contempt order as moot under United States

Munsinciwear Inc 340 U.s 36 1950The Seventh Circuit denied this motion and granted the

parties alternative request simply to dismiss the appeal Thecourt noted that its past unreported practice had been to denysuch motions to vacate although the Federal Second and FourthCircuits grant similar requests Stating there is no common lawwrit of erasure the court held that court opinion is public act of the government which may not be expunged by privateagreement settlement while the case is on appeal is reason why the losing party no longer wants the judgment reversedthe court continued It held that its rule would apply evenwhere the settlement represented less than full compliance withthe courts order That the parties here sought to vacatefinding of contempt was held to be an additional reason for notallowing them to have judicial decision vacated

In Re Iowa County Inc United States Dept ofllli No 881680 7th Cir Nay 21 1988DJ 7786301

Attorneys Anthony Steinmeyer FTS 633-3388Lowell Sturgill FTS 6333427


Eighth Circuit Holds That ArbitratiOn PanelsConvened Pursuant To The RandolphSheppard ActAre Authorized To Award Only Prospective DamagesAgainst States

The Randolph-Sheppard Vending Stand Act 20 U.S.C 107establishes cooperative state/federal scheme for licen

sing training and placing qualified blind persons in vendingfacilities on federal and other property blind vendor who is

dissatisfied with the operation or administration of the programmay invoke the grievance-arbitration procedures established bythe 1974 amendments to the Act The district court here heldthat an arbitration panel convened pursuant to the Act to arbitrate dispute between blind vendor and the state has theauthority to award retroactive money damages and attorneys fees

to the vendor upon finding that he was improperly denied vending facility and ordered the Secretary to reconvene the panel toconsider plaintiffs request for such relief The Department of

Education and the state Arkansas appealed arguing that the Actdid not authorize the award of compensatory relief and attorneysfees by the arbitration panel and that the award of retroactive

money damages against the state would violate the states sovereign immunity under the Eleventh Amendment

In per curiam decision from which each judge wroteseparate opinion concurring and dissenting in part the EighthCircuit has now held that the Randolph-Sheppard arbitration panelis authorized to award only prospective damages Thus while thecourt of appeals affirmed the district courts order to the Secretary to reconvene the arbitration panel it limited the scopeof the panels authority to award damages to the period frOm thedate of the panels decision until the date the plaintiff accepted an assignment to new vending facility In so holding the

Eighth Circuit went into conflict with the Third Circuits deci-sion in Delaware Department of Health Social Services U.SDepartment of Education 772 F.2d 1123 3d Cir 1985 which hadheld that Randolph-Sheppard arbitration panels were fully àuthôrized to award retrospective compensatory relief in appropriatecases 772 F.2d at 1136

George McNabb U.S Deptof Education et alNos 872017 872078 8th Cir Dec 1988DJ 14501985

Attorneys William Kanter FTS 6331597Jeffrica Jenkins Lee FTS 6333469


Ninth Circuit En Banc Affirms Issuance OfWorld-Wide Preliminary Injunction AgainstFerdinand And Imelda Marcos

The Republic of the Philippines filed this action in theCentral District of California against Mr Marcos Mrs Marcoset alleging $1.55 billion in damages arising out of variousmisdeeds during Mr Marcos tenure as President of the Philippines The district court granted plaintiffs request for preliminary injunction to prevent transfer of property held anywherein the world by or on behalf of the Marcoses On June 1987the Ninth Circuit vacated the injunction and ordered the caseremanded On November 16 1987 the Ninth Circuit granted rehearing en banc and on December 1987 the banc panel requested the government to file brief as amicus curiae addressing the act of state doctrine On January 11 1988 we filedbrief arguing that the record before the district court didnot furnish an adequate basis for it to find substantial likelihood of success on the bulk of the Philippines claim so as tojustify preliminary injunction of the scope entered andthat it was not clear on the present record that any act of statewas involved in the case and therefore the cOurt need not resolvethat issue at this time

The banc court 8-3 has now affirmed the districtcourts preliminary injunction The majority concluded thatfederal jurisdiction had properly been pleaded under RICO thedistrict court has properly exercised pendent jurisdiction andthe district court did not err in refusing to dismiss on forumnon convenjens grounds The majority also rejected the act ofstate and political question defenses as not applicable on thepresent record Finally based upon balance of the hardshipsin the Republics favor and the Republics fair chance of success on the merits the majority affirmed the district courtsissuance of the worldwide injunction

Republic of the Philippines MarcosNos 866091 866093 9th Cir Dec1988 banc DJ 14502398

Attorneys John F. Cordes FTS 633-3380John Schnitker FTS 633-2786

VOL 37 NO JAIUARY 15 1989 PAGE 29

Ninth Circuit Affirms District Court JudamentDismissing Air Force Reservists Damaaes Claims

Against His Superior Officers Under State CommonLaw The Constitution And Civil Rights Statutes

Plaintiff filed suit for damages against five Air Forceofficers on the ground that they had taken disciplinary actionagainst him in violation of state common law the Constitutionand federal civil rights legislation 42 US.C fl985l and19853 The district court dismissed the suit on the ground of

intra-military immunity deriving from Feres United States340 U.S 135 1950 The Ninth Circuit has affirmed The courtrejected plaintiffs principal argument that Feres principleswere inapplicable because some of defendants acts took placeafter plaintiff had signed of duty The court reasoned thatplaintiffs military commander had the authority to determinewhen plaintiffs duty day ended and that the commander coulddetain plaintiff for disciplinary purposes after signout Thecourt stressed that previous Ninth Circuit and Supreme Courtjurisprudence on the Feres doctrine prohibiting servicemensclaims for injuries incident to service rendered plaintiffsconstitutional common law and section 19851 claims untenableFurther the court held that plaintiffs failure to exhaust hisadministrative remedies made his section 19853 claim if viableat all not reviewable at this time Notably the court made noreference to the recentlyenacted Westfall legislation eventhough the case involved in part state common law claims

Miller Newbauer No 87-6573 9thCirDec 1988 DJ 157l2C3113

Attorneys John Cordes FTS 6333380John Crüden on detail fromthe U.S Army

Eleventh Circuit Holds That Tort Award To VeteranFor Malpractice Must Be Reduced By The Present ValueOf All Future VA Benefits Associated With The InjuryFor Which Damages Were Awarded Under The FederalTort Claims Act

The plaintiff veteran brought suit under the FederalTort Claims Act for injuries he received as result of allegedlynegligent medical treatment at VA hospital for complicationsarising from prior serviceconnected injury for which he wasalready receiving partial disability benefits under the VeteransAct Plaintiffs injuries also resulted in 100 percent disability award under the Veterans Act The district court awarded


$384000 in damages but refused to accept the Veterans Administration determination that plaintiffs injuries were serviceconnected under 38 U.S.C 331 and refused to reduce the tortaward by either the amount of the past or the future value of thefuture veterans benefits that plaintiff was entitled to receiveInstead the court sought to avoid double recovery by orderingthe VA to withhold future VA benefits under 38 U.S.C 351 whichprovides for such withholding for non-serviceconnected medicalmalpractice injuries The Eleventh Circuit first rejected plaintiffs argument that the award was insufficient accepting ourargument that the award was fully sufficient once the deductionfor taxes was considered and the amount of plaintiffs futurewages were reduced to present value The Eleventh Circuit alsoaccepted our argument that district court erred in reviewing theVAs determination that the injury was serviceconnected holdingthat such judicial review was precluded by 38 U.S.C 211aThe court thus ruled that double recovery should be avoided byreducing the tort award by the amount of past and future VAbenefits

Cole United States No 878325 11th CirDec 19 1988 DJ 15720407

Attorneys William Kanter FTS 633-1597Mark Pennak FTS 6334214

Eleventh Circuit Holds Civil Service Reform ActPreempts State Common Law Actions For ConspiracyAnd Tortious Interference With Employment

Two federal civil service employees brought suit againsttheir supervisors asserting that variety of alleged actionstaken by the two supervisors constituted torts under the commonlaw of Florida The district court denied the defendants motions to dismiss on absolute immunity grounds and on their behalf we appealed unanimous panel of the Eleventh Circuit hasnow reversed adopting our argument that the Civil Service ReformAct of 1978 preempts the state common law actions asserted by theplaintiff The court of appeals did not consider the effect ofthe recent Westfall legislation upon this case

Edward Broughton Russell Courtney andDonald DLucros No 87-3300 11th CirDec 1988 DJ 15717490

Attorneys Barbara Herwig FTS 633-5425Richard Olderinan FTS 633-3542

VOL 37 NO JANURY 15 1989 PAGE 33

CRIMINAL DIVISION

Federal Rules of Criminal Procedure

Rule 15 Depositions

Federal Rules of Evidence

Rule 804b Hearsay Exceptions DeclarantUnavailable Former Testimony

Defendant was convicted of narcotics conspiracy after he wasidentified as the intended receiver of heroin that was discoveredin persons suitcase at French airport Prior to defendantstrial the government sought the witness deposition by suggesting that open telephone lines be established between defendant in

New York and the deposition in France The government also soughtto record the deposition on audio or video tape Both proposalswere rejected as contrary to French law The French court required both parties to submit questions in writing since Frenchlaw only permits judge to question witnesses and the defensecounsel was informed that French law did not permit him to be

present while the witness testified lengthy cross-examination of the witness was conducted At defendants trial various

portions of the deposition were read into evidence over defense

objection Defendant asserted that the deposition contravenedFederal Rules of Criminal Procedure 15s requirement that defendant be present at deposition and theç limitations concerning the manner in which deposition is taken In additiondefendant challenged the trial courts ruling that the witnessdeposition constituted former testimony for purposes of FederalRules of Evidence 804b

The Court of Appeals held that the admission into evidenceof government witness testimony taken at deposition in

France pursuant to French procedures did not violate FederalRules of Criminal Procedure 15 or Federal Rules of Evidence

804bl sovereign nation is entitled to refuse to acquiescein the use within its borders of American methods of gatheringpreserving and presenting evidence such refusal however should

not automatically and invariably cause the prosecution to abandonits efforts to obtain evidence abroad Since the government made

reasonable effort to produce defendant at the taking of the

deposition and defense counsel conducted lengthy crossexamination of the witness the Court concluded that the governmentsinability to produce the defendant in France does not necessarilyinvalidate the deposition The Court said that although theFrench procedures do not comport with American requirements the


deposition process was fair and reliable The Court stressedhowever that determinations of the validity of foreign depositions are best made on casebycase basis

Affirmed

United States Mohamed Salim a/k/a Abdul Oazi a/k/aMohained Au 855 F.2d 944 2d Cir August 24 1988

LAND AND NATURAL RESOURCES DIVISION

Claims Court Lacked Subject Matter Jurisdiction OverClaims Brought By Inhabitants Of Marshall IslandsBecause The Consent Of The United States To Be SuedOn Those Claims Had Been Withdrawn In ConjunctionWith The Establishment Of Marshall Islands ClaimsTribunal Funded By The United States

These actions seek damages on behalf of residents of theMarshall Islands for alleged takings of property and breach ofimplied-in-fact contract duties said to result from the UnitedStates nuclear testing program at Bikini and Enewetak Atollsfrom June 1946 to August 1958 During the pendency of theseclaims the United States negotiated with the Marshall Islandswhich the United States then governed as U.N trusteeship theCompact of Free Association The Compact recognized the Republicof the Marshall Islands as self-governing and settled on governmentto-government basis all claims arising from the testingprogram The United States established $150 million compensation fund which provided for direct payments to the affectedatoll governments and claims tribunal to adjudicate individualclaims and make awards from this fund This agreement which wassubsequently ratified by Congress then provided that all claimswere terminated and that no court of the United States shallhave jurisdiction to entertain such claims Plaintiffs challenged the Compact on numerous constitutional and internationallaw grounds contending among other things that Congress couldnot constitutionally withdraw jurisdiction over taking claimswhich are grounded in the Constitution itself Plaintiffsasserted that Congress could only establish an alternative compensation plan if that plan provided for an ultimate Tucker Actremedy to compensate for any shortfall in the plan Thusplaintiffs argued that in addition to the $150 million fund1they must be allowed to pursue their taking claims estimated atsome $300 million in addition to separate tort claims assertedin two district court actions in the Claims Court as well


Affirming the Claims Courts dismissal of these actions for

lack of jurisdiction under the Compact the Federal Circuit heldthat Congress intended the alternative procedure to be utilizedand we are unpersuaded that judicial intervention is appropriateat this time on the mere speculation that the alternative remedy

may prove to be inadequate The Court distinguished the precedent holding that the Tucker Act remedy was available under otherstatutes creating an alternative forum for just compensation It

held that those statutes provided for continuing Tucker Act jurisdiction only in the event of shortfall not that such remedy was necessary to sustain the constitutionality of the alternative forum In any event the Court found that those cases do

not mandate such determination in advance of the exhaustion of

the alternative provided In light of this jurisdictional holding the Court did not reach the applicability of the politicalquestion doctrine or whether the Marshall Islands ggvernmentcould validly espouse the claims of its residents under international law

People of Enewetak Rongelap and Other MarshallIslands Atolls United States Fed Cir Nos881207 1208 December 1988 DJ 901232455901232542 901232485

Attorneys Jacques Gelin FTS 633-2762John StÆhrFTS 6332956

Order Granting Aid Of Access To the Environmental Protection Aencv EPA Under Section 104E Of The Coinrebensive Environmental Response Compensation And

Liability Act CERCLA

.TheUnited States brought this action under Section 104eof CERCLA as amended by the Superfund Amendments and Reauthorization Act SARA That provision authorizes the EPA to enter

property when there is reasonable basis to believe there maybe release or threat of release of hazardous substance or

pollutant or contaminant 42 U.S.C 9604el The sectionalso provides that the district courts shall provide injunctiverelief needed to prevent interference with EPAs access unless

the demand for access is arbitrary and capricious1 an abuse of

discretion or otherwise not in accordance with the law In

this case EPA.sought access to portion of the Fisher-Cab sitenorthern Indiana that is owned by the defendant This site is

listed on the National Priorities List


The district court granted EPAS request for an order in aidof access on. the basis of two declarations by an EPA employeedescribing the support for his conclusion that there may berelease or threat of release at Fishers property TheSeventh Circuit affirmed the district courts issuance of theorder and rejected the several objections that were raised byFisher With regard to the sufficiency of the showing needed towarrant an order in aid of access the court held that EPA hadamply satisfied Section 104es undemanding standard Opinion at The court stated in this regard that the Section 104estandard was met by the inclusion--not contested by Fisher--ofthe Fisher-Cab main site high on the National Priorities List

The court also rejected Fishers claim that the access orderwas erroneous because the order resulted in taking of his property The court described this claim as frivolous premature and subject to an exclusive remedy in the Claims Courtunder the Tucker Act Finally the court concluded thatthis action under CERCLA was not barred in any way by consentdecree that had been entered in prior action brought under theResource Conservation and Recovery Act which had also involvedthe Fisher-Cab site and had been brought in the Northern District of Indiana The court held that the enactment of SARAsubsequent to the entry of the consent decree provided EPA withnew authority that could not have been bargained away by EPAsagreement in the earlier litigation The court concluded thatthe consent decree cannot prevent the EPA from enforcing the newlaw Opinion at

United States David Fisher 7th CirNo 872940 December 1988 DJ 90112155

Attorneys Michael Healy FTS 633-2757Jacques Gelin FTS 633-2762

TAX DIVISION

Supreme Court To Review Question Whether CurrentYear Deductions Are Permitted For Ceding Commissions Paid To Insurance Companies

Colonial American Life Insurance Co Commissioner 5thCir. On December 1988 the Supreme Court granted the taxpayers petition for writ of certiorari in this case whichpresents the question whether ceding commissions payable byreinsurer to the initial insurer as consideration for the right


to share in the future income stream from block of life insurance policies reinsured under indemnity contracts are fullydeductible in the taxable year or must be capitalized over theestimated life of the reinsurance agreements We have prevailedon this issue in two Eighth Circuit cases as well as in thiscase from the Fifth Circuit We have lost it however in case

arising in the Seventh Circuit and we have recently filed

petition for writ of certiorari in that litigation The issueis one of considerable importance from the standpoint of revenuesince nearly half trillion dollars of domestic life insuranceis reinsured annually

Federal Circuit Holds That Excise Tax Provision MustBe Given Priority Over Income Tax Statute As AppliedTo Foreiqn Insurance Companies

Neptune Mutual Association Ltd of Bermuda United States

Fed dr. On November 30 1988 the Federal Circuit inunanimous decision affirmed the decision of the Claiius Courtinsofar as it had held in favor of the Government and vacated

and remanded for trial the decision of the Claims Court insofaras it had held in favor of the taxpayer The issue on the taxpayers appeal--an issue of considerable significance in the insurance industry-was whether foreign insurance company can be

held liable for the Section 4371 excise tax on domesticriskpolicies issued by foreign corporations where it is also potentially liable for the Section 842 income tax and where as theCommissioner concedes the company cannot be held liable for

both taxes Neptune was marine insurer incorporated in Berniuda The taxpayer was liable for the Section 4371 excise taxbecause it neither was authorized to do business in nor signedits policies in the state in which it marketed its policies In

addition it was theoretically liable for the income tax imposedby Section 842 of the Code because it was carrying on an insurance business within the United States within the meaning of

that section

The Claims Court agreeing with the Governments positionheld that the taxpayer was liable for the excise tax rather thanthe income tax On appeal the Federal Circuit affirmed Thecourt reasoned that the excise tax was tailored to deal specifically with the situation where foreign insurance company wasinsuring United States risks without being authorized to do business in the United States and that in theabsence of any indication of Congressional intent to the contrary the specificexcise tax statute should be given priority over the more general


income tax statute The issue on the Governments appeal waswhether assuming the taxpayer was liable for the excise tax itsfiling of income tax returns instead of excise tax returnsstarted the running of the statute of limitations for assessmentof the excise tax liabilities On crossmotions for summaryjudgment the Claims Court had held that where taxpayer that isrequired to file particular return files the wrong return butdoes so in good faith the taxpayers filing of the wrong returnstarts the running of the statute of limitations The FederalCircuit in vacating the Claims Courts decision held that thecontrolling question is not good faith but whether the IRS wasapprised of adequate information from which to compute the taxesowed It then determined that this question was disputedquestion of fact and remanded the case for trial

Second Circuit To Entertain InterlocutoryADDea1 In Insider Trading Case

Dennis Levine et a. 2d dr On December 1988the Second Circuit granted the Governments petition along withpetitions filed by the taxpayers involving the State of New Yorkand another group of competing claimants to the fund in questionfor leave to take an interlocutory appeal in this case Theissue on our appeal and the taxpayers appeals is whether theInternal Revenue Services tax liens attach to approximately $15million in assets held by the court-appointed receiver whichconsist largely of the proceeds of the illegal insider tradingconducted by the taxpayers Dennis Levine and Robert Wilkins andwhether the district court erred in ruling that constructivetrust was imposed onthese assets for the benefit of contemporaneous traders who sold shares during the relevant periods ofcorporations in which stock taxpayers were illegally tradingbriefing schedule was agreed upon with our brief being due onDecember 21 1988

Two Courts Of Aea1s Adopt Governments DefinitionOf Building For Purposes The Investment Tax Credit

McManus United States 7th Circuit These cases bothinvolved taxpayers claims for an investment tax credit in general terms the investment tax credit is not allowed with respectto buildings and other permanent structures In McManus thestructure was 10-unit aircraft hangar that was bolted together

VOL 37 NO JAIWARY 15 1989 PAGE 37

and attached to concrete piers at county airport The court

of appeals held that the hangar while capable of being dissembled and even of being moved was building and was permanentstructure In Corporation the Eighth Circuit disagreeingwith the Tax Courts analysis held that refrigerated structure

used for quick-freezing meat was also building rather than

building-size icebox Both courts holdings in this regard are

significant because they endorse an approach that looks to the

commonly accepted meaning of the term building as well as to

the function of the structure The Tax Court and some appellatecourts on the other hand have adopted far more restrictive

view of what constitutes building and thus have allowed the

investment tax credit for large buildinglike structures of

specialized nature As might be expected the amount of credits

at issue in such cases is ordinarily quite substantial

Sixth Circuit Holds That An Asserted Lien PriorityOr Unexercised Right Of Setoff Does Not Bar LevyEnforcement Action

State Bank of Fraser United States 6th Cir. On November 18 1988 the Sixth Circuit affirmed in part and reversed

in part the decision of the trial court in this case which involves the competing claims of bank and the Internal Revenue

Service to taxpayers funds in the bank and to its accounts receivable The court held not only that the Government was entitled to the funds in question but also that the bank was liable for the 50 percent penalty imposed by Section 6332cl of

the Internal Revenue Code for failing to honor the Governments

levy because an asserted lien priority or unexercised right of

setoff is not proper defense in levy enforcement actionFurther the court held that the bank was required to commence

wrongful levy action within nine months from the date notice of

levy was served on taxpayers account receivable debtors as provided in Section 7426c of the Code Section 6502b of the

Code which provides that the date on which levy is madeshall be the date on which the notice of seizure provided in

section 6335a is given was limited to situations involvinglevies on holders of tangible personal property as stated in

Treasury Reg Sec 301.65323c


AIPENDIX

CLJNULWFIVE LIST OF CHANGING FEDERAL CIVIL POSTJUDGMENT INTEREST RATESas provided for in the amendment to the Federal postjudgmentinterest statute 28 U.S.C 1961 effective October 1982

Effective Annual Effective AnnualDate Rate Date Rate

122085 7.57% 070387 6.64%

011786 7.85% 080587 6.98%

021486 7.71% 090287 7.22%

031486 7.06% 100187 7.88%

041186 6.31% 102387 6.90%

051486 6.56% 112087 6.93%

060686 7.03% 121887 7.22%

070986 6.35% 011588 7.14%

080186 6.18% 021288 6.59%

082986 5.63% 031188 6.71%

092686 5.79% 040888 7.01%

102486 5.75% 050688 7.20%

112186 5.77% 060388 7.59%

122486 5.93% 070188 7.54%

011687 5.75% 072988 7.95%

021387 6.09% 082688 8.32%

031387 6.04% 092388 8.04%

041087 6.30% 102188 8.15%

051387 7.12% 111888 8.55%

060587 7.00% 121688 9.20%


UNITED STATES ATTORNEYS

DISTRICT U.S ATTORNEY

Alabama Frank Donaldson

Alabama James Eldon Wilson

Alabama Sessions III

Alaska Michael SpaanArizona Stephen McNamee

Arkansas Charles Banks

Arkansas Michael Fitzhugh

California Joseph Russoniello

California David Levi

California Robert Bonner

California William Braniff

Colorado Michael Norton

Connecticut Stanley Twardy JrDelaware William Carpenter JrDistrict of Columbia Jay Stephens

Florida Michael Moore

Florida Robert Genzman

Florida Dexter Lehtinen

Georgia Robert Barr JrGeorgia Edgar Win Ennis JrGeorgia Hinton Pierce

Guam William OConnorHawaii Daniel Bent

Idaho Maurice Ellsworth

Illinois AætonR Valukas

Illinois Frederick Hess

Illinois William Roberts

Indiana James Richmond

Indiana Deborah Daniels

Iowa Charles Larson

Iowa Christopher HagenKansas Benjamin Burgess JrKentucky Louis DeFalaise

Kentucky Joseph Whittle

Louisiana John Volz

Louisiana Raymond Lamonica

Louisiana Joseph Cage JrMaine Richard Cohen

Maryland Breckinridge Wilicox

Massachusetts Frank McNamara JrMichigan Roy Hayes

Michigan John Smietanka

Minnesota Jerome Arnold

Mississippi Robert Whitwell

Mississippi George Phillips

Missouri Thomas Dittineier

Missouri Robert Ulrich


DISTRICT U.S ATTORNEY

Montana Byron DunbarNebraska Ronald LahnersNevada William MaddoxNew Hampshire Peter PappsNew Jersey Samuel Alito JrNew Mexico William LutzNew York Frederick Scullin JrNew York Rudolph GiulianiNew York Andrew MaloneyNew York Dennis VaccoNorth Carolina Margaret CurrinNorth Carolina Robert Edmunds JrNorth Carolina Thomas AshcraftNorth Dakota Gary AnnearOhio William EdwardsOhio Micnae.L CritesOklahoma Tony Michael GrahamOklahoma Roger HilfigerOklahoma William PriceOregon Char1 TurnerPennsylvania Michael BaylsonPennsylvania James WestPennsylvania Charles SheehyPuerto Rico Daniel LopezRomoRhode Island Lincoln AlmondSouth Carolina Vinton DeVane LideSouth Dakota Philip HogenTennessee John Gill JrTennessee Joe BrownTennessee Hickman Ewing JrTexas Marvin CollinsTexas Henry OnckenTexas Robert WorthamTexas Helen EversbergUtah Brent WardVermont George Terwilliger IIIVirgin Islands Terry HalpernVirginia Henry HudsonVirginia John AldermanWashington John LampWashington Gene AndersonWest Virginia William KolibashWest Virginia Michael CareyWisconsin John FryattWisconsin Patrick FiedlerWyoming Richard StacyNorth Mariana Islands William OConnor

EXHIBIT

FEDERAL EMPLOYEES LIABILITY REFORM AND TORT COMPENSATION ACT

PROPOSED PORN OF ORDER

The purpose of the new Westfall legislation No 100694 is to protect federal exrtployees from common law tort suitsWhen federal employees are named as defendants in pending or

future cases they are entitled to the benefit of court order

which gives effect to the express intent of the statute and

dismisses them from the litigation Such an order may be

essential to offset any problems which may have resulted from the

lawsuit eg having to note the pendency of the case on an

application for mortgage We believe it is sound practice to

submit with motion to substitute the United States proposedform of order which explicitly dismisses the individual

defendants copy of the proposed Order submitted recently in

Erwin Westfall is included with this update for adaptation to

your specific case

CORRECTION OF QUOTATION

The statutory language quoted in the sample brief forwarded

by Assistant Attorney General Boltons memorandum was taken from

an earlier draft Section 2679b now reads as follows

The remedy against the United States provided bysections 1346b and 2672 of this title for injury orloss of property or personal injury or death arising or

resulting from the negligent or wrongful act or

omission of any employee of the Government while actingwithin the scope of his office or employment is

exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter

against the employee whose act or omission gave rise tothe claim or against the estate of such employee Anyother civil action or proceeding for money damagesarising out of or relating to the same subject matter

against the employee or the employees estate is

precluded without regard to when the act or omission

occurred

BUBSThNTIVE LEGAL QUESTIONS

As reminder the Senior Trial Counsel of theConstitutional Tort Staff have been assigned specific substantive

areas of responsibility Please direct any questions to them and

keep them advised of all developments The assignments are

Scope of EmpiovTnent Issues Joseph Sher FTS 724-6337

Statute of Limitations Removal and Pending Case IssuesGordon Daiger FTS 724-7132

AttemDts to Plead Common Law Torts as Constitutional Violations

Larry Gregg FTS 724-7056

Enclosure

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIAM ERWIN SRAND EMELY ERWIN

Plaintiffs

CV85-H874S

RODNEY WESTFALLOSBORN RUTLEDGEAND WILLIAM BELL

Defendants

FEDERAL DEFENDANTS MOTION TOSUBSTITUTE THE UNITED STATES AS SOLE DEFENDANT

Federal defendants Rodney Westfall Osburn Rutledge and

William Bell by their undersigned attorneys move to substitute

the United States as sole defendant in this action The grounds

for this motion are

Plaintiffs allege defendants acted negligently while

they were working as civilian employees of the Department of the

Army at the Anniston Army Depot and that he was injured as

result

The FŁdera Tort Claims Act 28 U.S.C 2679b as

amended by Public Law 100-694 provides that suit against the

United States shall be the exclusive remedy for persons with

common law tort claims resulting from the actions of federal

employees taken within the scope of their employment.1

For the Courts convenience copy of H.R 4612 theenrolled bill signed by the President on November 18 1988 whichbecame Public Law 100-694 is filed herewith

The Federal Tort Claims Act 28 U.S.C 2679d.l as

amended by Public Law 100-694 provides that upon certification

by the Attorney General that federal employee was acting within

the scope of employment at the time of the incident out of which

the claim arose any civil action arising out of the incident

shall be deemed an action against the United States and the

United States shall be substituted as sole defendant

In support of this motion the Court is respectfully

referred to the attached memorandum of law certification

exhibit and order

Respectfully submitted

JOHN BOLTONAssistant Attorney General

FRANK DONALDSONUnited States AttorneyNorthern District of Alabama

JOHN FARLEY III

Director Torts BranchCivil Division

RO ERT ERICKSON JRTrial Attorney Torts BranchCivil DivisionU.S Department of JusticeP.O Box 7146

Benjamin Franklin Station

Washington D.C 20044

202 7247032

Attorneys for Federal Defendants

-2-

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMASOUTHERN DIVISION


Plaintiffs

CV85H874S


Defendants

________________________________________________________________________________________

MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTSNOTION TO SUBSTITUTE THE UNITED STATES AS SOLE DEFENDANT

STATEMENT OF THE CASES

On February 1985 plaintiffs brought suit in the Circuit

Court for Jefferson County Alabama alleging common law tort

claims against federal defendants in their individual capacities

and seeking damages from federal defendants personal assets On

March 25 1985 the action was removed to this Court pursuant to

28 U.S.C 1442al On March 1987 the United States

Supreme Court granted certiorari to decide the inununity issues

raised on summary judgment in the district and circuit courts

On January 13 1988 the United States Supreme Court decided the

instant case and remanded the matter for trial The case is set

for trial February 13 1989

At all times relevant to the complaint defendants were

federal employees acting within the scope of their employment

Section 2679b of Title 28 of the United States Code1 as

recently amended by The Federal Employees Liability Reform and

Tort Compensation Act of 1988 Public Law 100-694 provides that

the Federal Tort Claims Act FTCA is the exclusive remedy for

such claims

Because the United States is now the only proper defendant

in this action the individual defendants must be dismissed and

the United States substituted as the sole defendant in this

action

ARGUI4ENT

On November 18 1988 the Federal Employees Liability Reform

and Tort Compensation Act ot 1988 Public Law 10.0-694 was signed

into law The new statute provides that

The remedy against the United States provided bysections 1346b and 2672 of this title for injury orloss of property or personal injury or death arisingor resulting from the negligent or wrongful act oromission of any employee of the Government hile actingwithin the scope of his office or employment isexclusive of any other civil action or proceeding formoney damages by reason of the same subject matteragainst the employee whose act or omission gave rise tothe claim or against the estate of such employee Anyother civil action or proceeding for money damagesarising out of or relating to the same subject matteragainst the employee or the employees estate isprecluded without regard to when the act or omissionoccurred

28 U.S.C 2679b 1.1

The purpose of the Act as stated in Section 2b isto provide federal employees such as the defendants in thisaction complete immunity from liability for common law tortscommitted within the scope of their employment The Act wasCongress response to recent judicial decisions and particulary the decision of the United States Supreme Court inWestfa. Erwin which have seriously eroded the common lawtort immunity previously available to Federal employees andcreated an immediate crisis involving the prospect of personalliability and the threat of protracted personal tort litigationfor the entire Federal workforce 2a45 PL 100694

Upon certification by the Attorney General or his designee

that the individual defendant was acting within the scope of his

employment the action is deemed one against the United States

under the Federal Tort Claims Act and the United States must be

substituted as the defendant 28 U.S.C 2679d The Attorney

General has delegated the authority to make such certification to

the Assistant Attorney General in charge of the Civil Division

That authority has been redelegated to Directors of the Torts

Branch in the Civil Division of the United States Department of

Justice See 28 C.F.R 15.3 and the appendix thereto

Filed herewith is the Certification of John Farley III

Torts Branch Director in the Civil Division of the United States

Department of Justice that the federal defendants acted within

the course and scope of their employment at all times relevant to

plaintiffs claims

Accordingly the United States must be substituted as the

sole defendant in this action and Rodney Westfal Osburn

Rutledge and William Bell must be dismissed as defendants

Respectfully submitted

JOHN BOLTONAssistant Attorney General

FRANK DONALDSONUnited States AttorneyNorthern District of Alabama

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ALBAMA

SOUTHERN DIVISION


Plaintiffs

CV85H874S


Defendants

RTIFICATION

Pursuant to 28 U.S.C 2679d as amended by Public

Law 100-694 and by virtue of the authorIty vested in me by the

Assistant Attorney General under the appendix tO 28 C.F.R

15.3 hereby certify

have read the càmplaint in this action and all

attachments thereto

On the basis of the information now available with

respect to the incident referred to therein the individual

defendants were acting within the scope of their employment as

employees of the United States at the time of such incident

This ___________ day of December 1988

OHN ARLE ii

rector orts .BrancCivil Division

U.S Department of Justice

H.R.4612J3U8UG LAW 100 16 94

Onc iiundrdth onrcss of th t1nitd tats of mnica

AT THE SECOND SESSION

Begun and held at the City of lJasliington on Monday the twentv.Jifth day of Januaryone thousand nine hundred and elghty.eight

To emend titI 28 United States Code to provide for en exclusive remedy igeinit the

United Stale tot suite based upon certain negligent or wrongful ects or omissions

of United States employees committed within the ops of their employment end

for other purposes

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled

SECTION SHORT TITLE

This Act may be cited as the Federal Employees Liability Reform

and Tort Compensation Act of 1988

SEC FINDINGS AND PURPOSES

FINDINGS.The Congress finds and declares the following

For more than 40 years the Federal Tort Claims Act has

been the legal mechanism for compensating persons injured by

negligent or wrongful acts of Federal employees committed

within the scope of their employmentThe United States through the Federal Tort Claims Act is

responsible to injured persons for the common law torts of its

employees in the same manner in which the common law

histoncally has recognized the responsibility of an employer for

torts committed by its employees within the scope of their

employmentBecause Federal employees for many years have been

protected from personal common law tort liability by broad

based immunity the Federal Tort Claims Act has served as the

sole means for compensating persons injured by the tortious

conduct of Federal employees

Recent judicial decisions and particularly the decision of

the United States Supreme Court in Weatfall Erwin have

seriously eroded the common law tort immunity previously

available to Federal employees

This erosion of immunity of Federal employees from

common law tort liability has created an immediate crisis

involving the prospectof personal liability and the threat of

protracted personal tort litigation for the entire Federal

workforce

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

enofi Ita opinion in Westfall Erwin the Supreme Court

indicated that the Congress is in the best position to determine

the extent to which Federal employees should be personally

liable for common law torts and that legislative consideration

of thjs.matter would be useful

46122

PuRPosE.It is the purpose of this Act to protect Federalemployees from personal liability for common law torts corrimittedwlUizn the scope of their employment while providing personsinjured by the common Law torts of Federal employees with anappropriate remedy against the United States

SEC JUDICIAL AND LEGISLATIVE BRANCH EMPLOYEESSection 2671 of title 28 United States Code is amended in the first

full paragraph by inserting after executive departments the following the judicial and legislative branches

SEC RETENTION OF DEFENSES

Section 2674 of title 28 United States Code is amended by addingat the end of the section the following new paragraph

With respect to any claim under this chapter the United Statesshall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to theemployee of the United States whose act or omission gave rise to theclaim as well as any other defenses to which the United States is

frititled.

SEC EXCLUSIVENESS OF REMEDY

Section 2679b of title 28 United States Code is amended to readas follows

bXl The remedy against the United States provided by sections

1346b and 2672 of this title for injury or loss of property orpersonal injury or death arising or resulting from the negligent or

wrongful act or omission of any employee of.the Government while

acting within the scope of his ofTice or employment is exclusive of

any other civil action or proceeding for money damages by reason of

the same subject matter against the employee whose act or omission

gave rise to the claim or against the estate of such employee Anyother civil action or proceeding for money damages arising out of or

relating to the same subject matter against the employee or the

employees estate is precluded without regard to when the act or

omission occurred

Paragraph does not extend or apply to civil action

against an employee of the Governmentwhich is brought for violation of the Constitution of the

United States or

which is brought for violation of statute of the United

States under which such action against an individual is otherwise authorized.

SEC.6 REPRESENTATION AND REMOVAL

Section 2679d of title 28 United States Code is amended to read

as follows

dXl Upon certification by the Attorney General that the

defendant employee was acting within the scope of his office or

employment at the time of the incident out of which the claim arose

any civil action or proceeding commenced upon such claim in

United States district court shall be deemed an action against the

United States under the provisions of this title and all references

thereto and the United States shall be substituted as the party

certification by the Attorney General that the defend

ant empoyee was acting within the scope of his office or employ

46123

ment at the time of the incident out of which the claim arose anycivil action or proceeding commenced upon such claim in State

court shall be removed without bond at any time before trial by the

Attorney General to the district court of the United States for the

district and division embracing the place in which the action or

proceeding is pending Such action or proceeding shall be deemed to

be an action or proceeding brought against the United States underthe provisions of this title and all references thereto and the United

States shall be substituted as the party defendant This certification

of the Attorney General shall conclusively establish scope of office

or employment for purposes of removalIn the event that the Attorney General has refused to certify

scope of office or employment under this section the employee mayat any time before trial petition the court to find and certify that the

employee was acting within the scope of his office or employment

Upon such certification by the court such action or proceeding shall

be deemed to be an action or proceeding brought against the United

States under the provisions of this title and all references thereto

and the United States shall be substituted as the party defendant

copy of the petition shall be served upon the United States in

accordance with the provisions of Rule 4dX4 of the Federal Rules of

Civil Procedure In the event the petition is filed in civil action or

proceeding pending in State court the action or proceeding may be

removed without bond by the Attorney General to the district court

of the United States for the district and division embracing the place

in which it is pending If in considering the petition the district

court determines that the employee was not acting within the sco

of his office or employment the action or proceeding shall

remanded to the State court

Upon certification any action or proceeding subject to para

graph or shall proceed in the same manner as any action

against the United States filed pursuant to section 1346b of this

title and shall be subject to the limitations and exceptions applicable

to those actions

Whenever an action or proceeding in which the United States

is substituted as the party defendant under this subsection is dis

missed for failure firet to present claim pursuant to section 2675a

of this title such claim shall be deemed to be timely presented

under section 2401b of this title ifthe claim would have been timely had it been filed on the

date the underlying civil action was commenced and

the claim is presented to the appropriate Federal agency

within 60 days after dismissal of the civil action.

SEC SEVERABILITY

If any provision of this Act or the amendments made by this Act

or the application of the provision to any person or circumstance is

held invalid1 the remainder of this Act and such amendments and

the application of the provision to any other person or circumstance

shall not be affected by that invalidation

SEC EFFECTIVE DATE

GENEftAL Rui..a.Thia Act and the amendments made by this

Act shall take effect on the date of the enactment of this Act

APPLICABILITY TO PRocEEDINGsThe amendments made by

this Act shall apply to all claims civil actions and proceedings

46124

pending on or filed on or after the date of the enactment of thisAct

PENDING STATE PROCEEDINGSWith respect to any civil action

or proceeding pending in State court to which the amendmentsmade by this Act apply and as to which the period for removalunder section 2679d of title 28 United States Code as amended bysection of this Act has expired the Attorney General shall have60 days after the date of the enactment of this Act during which toseek removal under such section 2679d

CLAIMS ACCRUING BEFORE ENACTMENTWith respect to anycivil action or proceeding to which the amendments made by this

Act apply in which the claim accrued before the date of the enactment of this Act the period during which the claim shall be deemedto be timely presented under section 2679d5 of title 28 UnitedStates Code as amended by section of this Act shall be that periodwithin which the claim could have been timely filed under applicable State law but in no event shall such period exceed twoyears from the date of the enactment of this Act

SEC TENNESSEE VALLEY AIJTHORITY

EXLUSIVENESS OF REMEDY.1 An action against the Tennessee Valley Authority for injury or loss of property or personal

injury or death arising or resulting from the negligent or wrongful

act or omission of any employee of the Tennessee Valley Authoritywhile acting within the scope of this office or employment is

exlusive of any other civil action or proceeding by reason of the

same subject.matter against the employee or his estate whose act oromission gave rise to the claim Any other civil action or proceeding

arising out of or relating to the same subject matter against the

employee or.his.estate is precludedwithout regard to when the act

or omission occurred

Paragraph does not extend or apply to cognizable action

against an employee of the Tennessee Valley Authority for moneydamages for violation of the Constitution of the United States

REPRESENTATION AND REM0vAL.1 Upon certification by the

Tennessee Valley Authority that the defendant employee was actingwithin the scope of his office or employment at the time of the

incident out of which the claim arose any civil action or proceedingheretofore or hereafter commenced upon such claim in UnitedStates district court shall be deemed an action against the

Tennessee Valley Authurity pursuant to 16 U.S.C 831Cb and the

Tennessee Valley Authority shall be substituted as the party

defendant

Upon certification by the Tennessee Valley Authority that the

defendant employee was acting within the scope of his office or

emploment at the time of the incident out of which the claim arose

any civil action or proceeding commenced upon such claim in

State court shall be removed without bond at any time before trial

by the Tennessee Valley Authority to the district court of the

United States for the .district and division embracing the place

wherein it is pending Such action shall be deemed an action

brought against the Tennessee Valley Authority under the provi

sions of this title and all references thereto and the Tennessee

Valley Authority shall be substituted as the party defendant This

certification of the Tennessee Valley Authority shall conclusivel

establish scope of office or employment for purposes of remova

H.R.46125

In the event that the Tennessee Valley Authority has refused

to certify scope of office or employment under this section the

employee may at any time before trial petition the court to find and

certify that the employee was acting within the scope of his office or

employment Upon such certification by the court such action shall

be deemed an action brought against the Tennessee Valley Author

ity and the Tennessee Valley Authority shall be substituted as the

party defendant copy of the petition shall be served upon the

Tennessee Valley Authority in accordance with the Federal Rules of

Civil Procedure In the event the petition is filed in civil action or

proceeding pending in State court the action or proceeding may be

removed without bond by the Tennessee Valley Authority tothe

district court of the United States for the district and division

embracing the place in which it is pending If in considering the

petition the district court determines that the employee was not

acting within the scope of his office or employment the action or

proceeding shall be remanded to the State court

Upon certification any actions subject to paragraph or

shall proceed in the same manner as any action against the

Tennessee Valley Authority and shall be subjectto the limitatiOns

and exceptions applicable to those actions

Rrrvrr1oN OP DEPENsEs.Section 2674 of title 28

United States Code is amended by adding at the end thereof

the following new paragraphWith respect to any claim to which this section applies the

Tennessee Valley Authority shall be entitled to assert any defense

which otherwise would have been available to the employee based

upon judicial or legislative immunity which otherwise would have

been available to the employee of the Tennessee Valley Authority

whose act or omission gave rise to the claim as well as any other

defenses to which the Tennessee Valley Authority is entitled under

this chapter.

Speaker of the House of Representatives

Vice President of the United States and

President of the Senote

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION


Plaintiffs

CV85H874S


Defendants

ORDER

Upon motion of federal defendants to substitute the United

States as sole defendant and it appearing to the Court that this

is comnon law tort action against federal defendants arising

out of actions taken within the scope of their employment

IT IS ORDERED pursuant to 28 U.S.C 2679d as amended

by Public Law 100694 that the United States be substituted as

defendant herein in place of Rodney Westfall OsburnRutledge

and William Bell and that the title of the action be amended

accordingly

It is FURTHER ORDERED that as to the individual federal

defendants Rodney Westfal Osburn Rutledge and William

Bell this action is dismissed with prejudice

This ___________ day of December 1988

JAMES HANCOCKUNITED STATES DISTRICT JUDGE

AMENDMENTS TO THE EXHIBIT

CRIMINAL CIVIL RIGHTS STATUTES

83.130 Authorization for Grand JurY ProceedingsArrests and Indictments

The enforcement of federal criminal civil rights statutes

may require the use of federal grand juries for investigation as

well as for indictment The U.S Attorney need not obtain the

approval of the Civil Rights Division to use grand jury to

investigate any alleged criminal civil rights violation Priorto the grand jury proceeding however the U.S Attorney mustinform the Assistant Attorney General Civil Rights Divisionattention Chief of the Criminal Section of his/her intentionto use grand jury for investigative purposes Notification maybe made by telephone if necessary

Generally the U.S Attorney need not obtain the approval of

the Assistant Attorney General to present civil rights matterto grand jury for the purpose of obtaining an indictment under

any of those criminal statutes listed in USAM 8-1.100 aupraThe only exceptions are prosecutions cases where..death

results under 18 U.S.C 242 all prosecutions under 18 U.S.C241 and 245 and prosecutions under 18 U.S.C 1001 in whichthe alleged false off icial statement relates to civil rightsmatter Prosecutions under 18 U.S.C 245 require prior writtencertification by the Attorney General or Deputy Attorney Generalthat the prosecution is in the public interest and necessary tosecure substantial justice

In cases in which authorization is not required the U.SAttorney must give the Chief of the Criminal Section advance

notice of his/her intention to seek an indictment and mustfurnish him/her copy of the indictment when it is returned bythe grand jury The Assistant Attorney General may require theU.S Attorney to submit additional information e. grand jurytranscripts copy of proposed indictment necessary to review thecase If the Assistant Attorney General disagrees with the

seeking of the indictment he/she will furnish the U.S Attorneythe reasons for his/her disagreement together with his/herinstructions for the disposition of the case The Assistant

Attorney General will use this review procedure judiciously and

only in exceptional cases e.g those involving important publicpolicy considerations or novel legal issues or when necessary toensure uniform application of the law

No arrest should be made until prosecution is authorizedexcept where flight destruction of evidence or other emergencycircumstances are expected and time does not permit priorconsultation with the Civil Rights Division

Nothing herein shall diminish the authority of the Assistant

Attorney General Civil Rights Division to prosecute or declineto prosecute those cases within the Divisions jurisdiction

83.210 3.8 U.S.C 242

Elements of the Offense

There are four essential elements that must be proved in

order to show violation of 18 U.S.C 242

The person upon whom the alleged acts were committedmust have been an inhabitant of state district or territory of

the United States

The defendant must have been acting under color of thelaw that is while using or misusing power possessed by reasonof the law Private citizens jointly engaged with stateofficials who are themselves acting under color of law in

prohibited activity are acting under color of law for purposesof Section 242

The conduct of the defendant must have deprived thevictim of some right secured or protected by the ConstituTtion ofthe United States For example one of the rights secured andprotected by the Constitution of the United States is that no

person acting under color of law shall deprive any person of

liberty without due process of law Libertyincludes the righttO be free from unreasonable unnecessary or unprovoked assaultsor abuse by officers acting under color of law

There must have been an intent on the part of the

defendant willfully to subject the victim to the deprivation of

the right described above

Section 242 provides for an enhanced penalty when deathresults and when bodily injury results In such cases deathresulting and/or resulting in bodily injury must be includedin the indictment and in the courts charge as fact to be foundby the jury

Note Portions and of 83.210 are unchanged

83.220 18 U.S.C 241

Elements of the Offense

Two or more persons must conspire

The purpose of their conspiracy must be to injureoppress threaten or intimidate one or more persons

One or more of the intended victims must be citizenan inhabitant of any State Territory or District of the UnitedStates

The conspiracy must be directed at the free exercise orenjoyment by such United States of zightor privilege secured by the Constitution or laws of the UniteStates

Note that Section 241 does not require proof of an diert actto support conviction

241 provides for an enhanced penalty when deathresults In such cases death resulting must be included inthe indictment and in the courts charge as fact to be found bythe jury ..

Section.241pros.cribes conspiracies in which one or more ofthe conspirators acts under color of law to interfere with rightssecured and protected by the Constitution and laws of the UnitedStates such as the right to be free from unreasonable and

unnecessary assaults or abuse by officers acting under color oflaw Thus the rights protected under Section .242 also areprotected by Section 241

In addition Section 241 prohibits private conspiraciesdirected against citizens an inhabitants exercise offederal rights made certain by the Constitution statutes orcourt decisions Such rights include but are not limited tothe right to provide information to federal law enforcementauthorities the right to be federal witness the right totravel interstate and the right to vote in federal electionsSection 241 also makes criminal going in disguise with one or

more persons on the highway or premises of another with theintent to interfere with the exercise of protected right

Note Portions and of 8-3.220 are unchanged

ATTACHMENT

CHAPTER 13CiVIL RIGHTS

Sec

241 Conspiracy against rights of citizenel242 Deprivation of rights under color of law

241 Conspiracy against rights of citizens

If two or more persons conspire to injure oppress threaten orintimidate any citizen inhabitant of any State Territory or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States orbecause of his having so exercised the same or

If two or more persons go in disguise on the highway or on thepremises of another with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured

They shall be fined not more than $10000 or imprisoned notmore than ten years or both and if death results they shall be

subject to imprisonment for any term of years or for life

242 Deprivation of rights under color of law

Whoever under color of any law statute ordinance regulationor custom willfully subjects any inhabitant of any State Territoryor District to the deprivation of any rights privileges or immunities secured or protected by the Constitution or laws of the UnitedStates or to different punishments pains or penalties on accountof such inhabitant being an alien or by reason of his color or racethan are prescribed for the punishment of citizens shall be finednot more than $1000 or imprisoned not more than one year orboth and if bodily injury results shall be fined under this title orimprisoned not more than ten years or both and i.fdeath results

shall be subject to imprisonment for any term of years or for life

EXHIBIT

DRAFT PAYMENT PROGRAMPOINTS OF CONTACT

SUBJECT CONTACT NUMBER

Procedures Designated Budget Analyst 272-6935Financial Mgnit Staff/EOUSA

Modems Lines PCs Information Management/EQUSA.PC Help Desk 673-6379

Software Assistance Richard Hess/JMD 272-4471

General FMIS User Financial and Administrative 272-4471Assistance Systems Support Group/JMD

Travel Advances Gwen DicksonSSN Rejections Draft Adininistrator/JMD 272-4460Voided Drafts

Reordering Drafts Debbie Sanders 272-4468Administrative Assistant/JMD

EXHIBIT

UNITED STATES ATTORNEYS BULLETINQUESTIOAIRE

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Please return tO EditorUnited States Attorneys BulletinRoom 1629 Department of Justice9th and Pennsylvania Avenue N.WWashington 20530

U.S Government Printing Office 1989 241-712/00019

united states - u.s. department of justice · 2010. 10. 12. · vol 37 no january 15 1989 page...

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