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bob7947

Davis v. Conley

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Wonder whether the investigator or his supervisor even thought about conferring with the U.S. Attorney's Office before acting, to determine whether the U.S. Attorney would prosecute. All the facts were known except authenticity, and it could be assumed it was authentic moon rock. Next step, facetiously, maybe Neil Armstrong should be prosecuted posthumously for giving out this gift. The Government action in this case disturbs me.

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The key point of the case is that if you're a federal employee, don't count on not being personally liable for something you do in an official capacity.

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And with respect to that, Vern, I believe federal employees should consider looking into obtaining insurance against liability when sued in their individual capacity for  claims alleged to be in violation of the U.S. or a State constitution, a federal statute or state tort law. For some employment positions, the Government may reimburse for such insurance. There does seem to be a process for employees to request that the Government provide Government attorneys to represent them. That representation isn't always guaranteed. The cost to an employee for hiring an attorney is expensive, aside from the possibility of being personally liable for damages. In my view, federal employees should bone up on what their situation is in their Agency and job category.

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Would liability insurance cover illegal, criminal activities of government employees? I believe that the  subject case here concerns qualified immunity for a civil suit. Does liability insurance cover legal costs for a civil servant that is denied qualified immunity from civil actions related to their on-duty actions ? 

In the mid 1990's, a former Army civil service employee, who was a senior supervisory official at Aberdeen Proving Grounds or at Edgewood Arsenal, spoke at a Mobile, Alabama Post meeting of the Society of American Military Engineers.  He recounted his story of how he was prosecuted and convicted for personal felony criminal violations of various federal anti-pollution laws such as the Resource Conservation and Recovery Act (see Section 6001).  He was fined, served time in Federal prison and lost his job.  The violations were for improper storage of leaking hazardous and toxic waste materials on Army property. 

 The Army was aware or should have been aware of leaking containers and old systems for chemical weapons materials.

His presentation was meant to warn government employees that they can be held personally liable for criminal violations of Hazardous Waste laws and that the government could not provide or pay for legal defense of criminal  violations by US Government employees due to their employment. 

 

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17 hours ago, Neil Roberts said:

Vern, I believe federal employees should consider looking into obtaining insurance against liability when sued in their individual capacity for  claims alleged to be in violation of the U.S. or a State constitution, a federal statute or state tort law.

Well, if you think you might need the protection of insurance you should look into buying it. I don't have a problem with that. I wouldn't buy it, but friends of mine have done so.

I think a personal lawsuit is more likely to arise from one's performance of supervisory responsibilities than from contracting work. The best job in contracting is to be a nonsupervisory GS-15 contracting officer in a large DOD or NASA program. Dream job.

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My understanding is that professional liability insurance for an individual would probably not pay for damages caused by the individual's commission of a crime. However, the insurance company may defend the person against such allegations until such time as there is a judicial finding that the damages were causes by the commission of a crime. It does seem possible that aside from defending the person, the insurance company might actually pay for damages negotiated in a civil suit settlement that clearly indicates there is no admission of liability/criminal guilt. In my view, it might be possible in a criminal law prosecution plea deal that indicates admission of guilt to a lesser unrelated charge, i.e., disturbing the peace. Are there any insurance experts out there that can comment? 

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Thanks, Vern. In the situation I described, I believe that the individual claimed that they were aware of leaking 55 gallon drums, etc. They were planning to take action but the plan was unfunded. Didn't matter - arrested for criminal violations. 

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For those of you who are interested in when DoJ will defend an action brought against a Federal employee, see 28 CFR 15.  In Davis, the plaintiff is seeking damages on a constitutional tort theory, not a tort theory.  So DoJ may not defend those types of actions.  It would be interesting to know if NASA tried to get DoJ to defend Conley and have the government substituted as the defendant.

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Retread:

Actually, the plaintiffs sued based on both common law tort claims under the Federal Tort Claims Act, 28 USC 1346, which is a suit against the U.S., and on constitutional tort claims (the "Bivens" claim), which is a suit against an individual. The plaintiffs sued both the U.S. and six NASA employees.

The following is from the plaintiffs' brief:

Quote

Plaintiffs filed a First Amended Complaint [“FAC”] on August 7, 2013, alleging common law tort claims against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b), 2674 et. seq., and constitutional claims under Bivens against six individual NASA employees. ER 437-44 (FAC (DKT 16)). The individual defendants filed a motion for summary judgment (“MSJ”) on March 31, 2014, on the grounds that each was entitled to qualified immunity. ER 234, 236, 250-51 (MSJ). DKT 34.

I presume that the reason they filed both is because the government has a bigger bank account than the individuals. As for constitutional torts--actions against individuals--see http://biotech.law.lsu.edu/map/ConstitutionalTorts-BivensActions.html:

Quote

Constitutional Torts - Bivens Actions

The Supreme Court created a private damages action against federal officials for constitutional torts (civil rights violations), which are not covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right of action against federal law enforcement officials for damages from an unlawful search and seizure. Since a Bivens action is brought against a federal official in the official’s personal capacity, it is not considered to be an action against the United States and therefore is not barred by sovereign immunity. Bivens is not a general tort law. The plaintiff seeking a damages remedy under Bivens must first demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979) ]

Bivens suits have been acknowledged by the Court as having more of a deterrence effect against federal officials from committing constitutional torts than the FTCA. This is chiefly because a Bivens suit is a personal suit against the official, and punitive damages are recoverable. The government is substituted for the defendant in FTCA cases, and the FTCA does not allow punitive damages. Thus a Bivens defendant is at risk of personal liability, including punitive damages, while the government pays all damages in FTCA cases. Procedurally, a plaintiff is entitled to a jury trial in a Bivens action, but not in a FTCA case.[Carlson v. Green, 446 U.S. 14 (1980) ]

The main defense for a federal official in a Bivens action is official immunity from actions for damages. There are two types of official immunity available as affirmative defenses: absolute and qualified.[ Butz v. Economou, 438 U.S. 478 (1978)] Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties. Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982) ].

"Qualified immunity" is the "limited" immunity mentioned in the appellate decision.

By the way, a jury trial in a Bivens action would be a killer: six big men against one 4' 11" 74 year old widow. Oh, boy. they might as well sell their houses and all their other stuff and pay up. What a bunch of dopes.

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One more point of interest here.  The opinion says that Conley got a search warrant to search Davis and seize the moonrock.  The opinion contains a small quote from the affidavit to obtain the warrant.  It does not discuss what inquiry the attorney applying for the warrant made of Conley.  It is some what disconcerting to think that the attorney would have gone forward with the warrant if (s)he was aware of the  background of this case.

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