Federal Employees, Torts, and the Westfall Act of 1988

By Lee, Robert D., Jr. | Public Administration Review, July-August 1996 | Go to article overview

Federal Employees, Torts, and the Westfall Act of 1988


Lee, Robert D., Jr., Public Administration Review


The Federal Employees Liability Reform and Tort Compensation Act - better known as the Westfall Act - was rushed into law in 1988 to avoid what was expected to be a crisis in exposing federal workers to court suits. The law was intended to overturn the Supreme Court's January 1988 decision in Westfall v. Erwin, which greatly expanded the potential liability of legislative and judicial employees as well as employees of the executive branch. Once faced by such a threat - and perhaps especially because the decision threatened congressional workers - Congress acted promptly. By November, Congress had held hearings, the House and Senate had agreed on language of a new bill, and President Reagan had signed the bill into law. Any gridlock that existed on this matter between the executive and legislative branches simply evaporated when the Court handed down its ruling.

The law's purpose is "...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" (sec. 2[b]). The intention was to overturn the Westfall decision and thereby restore protections to executive-branch workers, extend those protections to legislative and judicial workers, and reinstitute the procedures by which persons who were harmed could bring suit against the government rather than against individual workers. Seldom is anything as easy as it seems. The law may have achieved its key purposes, but numerous other problems arose in the process.

An Overview of Torts

A tort is a civil wrong independent of contract, meaning that the harm did not stem from a breach of the contract. Constitutional torts involve harm stemming from violation of one's constitutional rights. Since the Supreme Court's landmark decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), federal employees can be held personally liable for violating someone's constitutional rights. In the Bivens case, narcotics officers made a warrantless search of a residence in the early morning. Cases commonly arise in which constitutional torts are alleged (see the Blohm; Krueger, Lutz; Rauccio; and Saul cases).(1) The Supreme Court ruled in 1994 that the Bivens remedy can only be used in suits against individuals and not in suits against the government (Federal Deposit Insurance Corporation v. Meyer). A second type of tort and the one of concern in this article is the common law tort. These torts involve such behavior as negligence, defamation, harassment, and emotional distress. The third type is the federal statutory tort, in which a person's rights under a federal law are abridged (Anderson and Pellett, 1990). It is common for people to file suits that allege both constitutional and common law torts have been committed (Pelletier and Rallis). A single action or event, as in the case of assault, can be both a tort and a crime.

The key mechanism for common law tort cases against the federal government is the Federal Tort Claims Act (FTCA) of 1946. The federal government has partially waived its sovereign immunity to allow suits against itself. Under this law, suits are filed in district courts which apply state tort law to the federal government as though it was an individual in the state where the alleged event occurred. As will be seen below, exceptions contained in the FTCA bar several types of suits against the government.

Westfall v. Erwin

All of the furor in Congress to write the Westfall Act and much of the legal maneuvering since its passage stem from William Erwin receiving soda ash burns in his eyes and throat while working as a civilian warehouseman at an army depot in Alabama. He and his wife sued Rodney Westfall, Erwin's superior, and other workers at the depot for negligence in the handling and storage of this toxic substance. Erwin contended the bags of soda ash should never have been stored in the warehouse, that the soda ash had been allowed to spill from bags, and that he had not been warned of their presence in the warehouse.

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