* Act of November 18, 1988 (P.L. 100-694; 102 Stat. 4563; 28 U.S.C. 2671(note), 2674, 2679(note), 2679b and d)

Note-This act provides protection to Federal employees from personal liability for certain negligent or wrongful acts or omissions. It immunizes Federal employees from personal liability for common law torts committed within the scope of their employment. This act makes the Federal Tort Claims Act (P.L. 79-601, 60 Stat. 812) the exclusive remedy (as in vehicle accidents) for injury to, or loss of, property, death, or personal injury.

Findings and Purposes

Sec. 2. (a) Findings.-The Con-gress finds and declares the follow-ing:

(1) For more than 40 years the Federal Tort Claims Act has been the legal mechanism for compensat-ing persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment.

(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employ-ees in the same manner in which the common law historically has recognized the responsi-bility of an em-ployer for torts committed by its employees within the scope of their employment.

(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for com-pensating persons injured by the tortious conduct of Federal employ-ees.

(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immu-nity previously available to Federal employees.

(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the pros-pect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.

(6) The prospect of such liabil-ity will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts.

(7) In its opinion in Westfall v. 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 consider-ation of this matter would be useful.

(b) Purpose.-It is the purpose of this Act to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States. (28 U.S.C. 2671(note))

Judicial and Legislative Branch Employees

Sec. 3. Section 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,". (28 U.S.C. 2671 (note))

Retention of Defenses

Sec. 4. Section 2674 of title 28, United States Code, is amended by adding at the end of the section the following new paragraph:

"With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.". (28 U.S.C. 2674 (note))

Exclusiveness of Remedy

Sec. 5. Section 2679(b) of title 28, United States Code, is amended to read as follows:

"(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or person-al injury or death arising or result-ing from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employ-ment 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. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

"(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Govern-ment-

"(A) which is brought for a violation of the Constitution of the United States, or

"(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.". (28 U.S.C. 2679)

Representation and Removal

Sec. 6. Section 2679(d) of title 28, United States Code, is amended to read as follows:

"(d)(1) 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 a 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 Unit-ed States shall be substituted as the party defendant.

"(2) 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 a State court shall be removed without bond at any time before trial by the Attor-ney 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 under the 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 conclu-sively establish scope of office or employment for purposes of removal.

"(3) In the event that the At-torney General 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 certifica-tion by the court, such action or proceeding shall be deemed to be an action or proceed-ing brought against the United States under the provisions of this title and all references thereto, and the United States shall be substitut-ed as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or pro-ceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embrac-ing the place in which it is pending. If, in considering the petition, the district court deter-mines that the employee was not acting within the scope of his office or employ-ment, the action or proceeding shall be remanded to the State court.

"(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall pro-ceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

"(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented un-der section 2401(b) of this title if-

"(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and

"(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.". (28 U.S.C. 2679)

Severability

Sec. 7. If any provision of this Act or the amendments made by this Act or the application of the provision to any person or circum-stance is held invalid, 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 invali-dation. (28 U.S.C. 2671(note))

Effective Date

Sec. 8. (a) General rule.-This Act and the amendments made by this Act shall take effect on the date of the enactment of this Act.

(b) Applicability to proceedings.-The amendments made by this Act shall apply to all claims, civil actions, and proceed-ings pend-ing on, or filed on or after, the date of the enactment of this Act.

(c) Pending state proceed-ings.-With respect to any civil action or proceeding pending in a State court to which the amend-ments made by this Act ap-ply, as to which the period for re-moval under section 2679(d) of title 28, United States Code (as amended by section 6 of this Act), has ex-pired, the Attorney General shall have 60 days after the date of the enactment of this Act during which to seek re-moval under such section 2679(d).

(d) Claims Accruing Before Enactment.-With respect to any civil 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 deemed to be timely presented under section 2679(d)(5) of title 28, United States Code (as amended by section 6 of this Act) shall be that period within which the claim could have been timely filed under applicable State law, but in no event shall such period exceed two years from the date of the enactment of this Act. (28 U.S.C. 2679(note))

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