Federal Employees Liability Reform and Tort Compensation Act of 1988
PL 100-694 (H.R.4612), enacted 11/18/1988

PUBLIC LAW 100-694—NOV. 18, 1988 
102 STAT. 4563 
Public Law 100-694 
100th Congress 
An Act 
To amend title 28, United States Code, to provide for an exclusive remedy against the 
United States for suits based upon certain negligent or wrongful acts or omissions 
of United States employees committed within the scope of their employment, and 
for other purposes. 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the "Federal Employees Liability Reform 
and Tort Compensation Act of 1988". 
SEC. 2. FINDINGS AND PURPOSES. 
(a) FINDINGS.—The Congress finds and declares the following: 
(1) 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 employment. 
(2) The 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 
historically has recognized the responsibility of an employer 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 compensating persons injured by the tortious 
conduct of Federal employees. 
(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 immunity 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 prospect of personal liability and the threat of 
protracted personal tort litigation for the entire Federal 
workforce. 
(6) The prospect of such liability will seriously undermine the 
morale and well being of Federal employees, impede the ability 
of agencies to carry out their missions, and diminish the vitality 
of the Federal Tort Claims Act as the proper remedy for Federal 
employee torts. 
(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 consideration 
of this matter would be useful. 
Nov. 18, 1988 
[H.R. 4612] 
Federal 
Employees 
Liability Reform 
and Tort 
Compensation 
Act of 1988. 
28 u s e 1 note. 
28 u s e 2671 
note. 
102 STAT. 4564 
PUBLIC LAW 100-694—NOV. 18, 1988 
(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. 
SEC. 3. JUDICIAL AND LEGISLATIVE BRANCH EMPLOYEES. 
Section 2671 of title 28, United States Code, is amended in the first 
full paragraph by inserting after "executive departments," the fol-
lowing: "the judicial and legislative branches,". 
SEC. 4. RETENTION OF DEFENSES. 
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 legisla-
tive 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.". 
SEC. 5. EXCLUSIVENESS OF REMEDY. 
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 
personal 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 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 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 Government— 
"(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 other-
wise authorized.". 
SEC. 6. REPRESENTATION AND REMOVAL. 
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 United States shall be substituted as the party 
defendant. 
"(2) Upon certification by the Attorney General that the defend-
ant employee was acting within the scope of his office or employ-
PUBLIC LAW 100-694—NOV. 18, 1988 
102 STAT. 4565 
ment 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 
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 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 conclusively establish scope of office 
or employment for purposes of removal. 
"(3) In the event that the Attorney 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 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. 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 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 scope 
of his office or employment, the action or proceeding shall be 
remanded to the State court. 
"(4) Upon certification, any action or proceeding subject to para-
graph (1), (2), or (3) shall proceed 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 dis-
missed 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 
under 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.". 
SEC. 7. SEVERABILITY. 
28 USC 2671 
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 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 invalidation. 
SEC. 8. EFFECTIVE DATE. 
28 USC 2679 
(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 proceedings 
102 STAT. 4566 
PUBLIC LAW 100-694—NOV. 18, 1988 
pending on, or filed on or after, the date of the enactment of this 
Act. 
(c) PENDING STATE PROCEEDINGS.—With respect to any civil action 
or proceeding pending in a State court to which the amendments 
made by this Act apply, and £is to which the period for removal 
under section 2679(d) of title 28, United States Code (as amended by 
section 6 of this Act), has expired, the Attorney General shall have 
60 days after the date of the enactment of this Act during which to 
seek removal 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 enact-
ment 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 ap-
plicable State law, but in no event shall such period exceed two 
years from the date of the enactment of this Act. 
16 use 831C-2. 
SEC. 9. TENNESSEE VALLEY AUTHORITY. 
(a) EXLUSIVENESS OF REMEDY.—(1) An action against the Ten-
nessee 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 Authority 
while 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 or 
omission 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 precluded without regard to when the act 
or omission occurred. 
(2) Paragraph (1) does not extend or apply to a cognizable action 
against an employee of the Tennessee Valley Authority for money 
damages for a violation of the Constitution of the United States. 
(b) REPRESENTATION AND REMOVAL.—(1) Upon certification by the 
Tennessee Valley Authority that the defendant employee weis 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 
heretofore or hereafter commenced upon such claim in a United 
States district court shall be deemed an action against the 
Tennessee Valley Authority pursuant to 16 U.S.C. 831C(b) and the 
Tennessee Valley Authority shall be substituted as the party 
defendant. 
(2) Upon certification by the Tennessee Valley Authority 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 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 conclusively 
establish scope of office or employment for purposes of removal. 
PUBLIC LAW 100-694—NOV. 18, 1988 
102 STAT. 4567 
(3) 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. A 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 a civil action or 
proceeding pending in a State court, the action or proceeding may be 
removed without bond by the Tennessee Valley Authority 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 scope of his office or employment, the action or 
proceeding shall be remanded to the State court. 
(4) Upon certification, any actions subject to paragraph (1), (2), or 
(3) shall proceed in the same manner as any action against the 
Tennessee Valley Authority and shall be subject to the limitations 
and exceptions applicable to those actions. 
(c) 
RETENTION 
OF 
DEFENSES.—Section 
2674 
of 
title 
28, 
United States Code, is amended by adding at the end thereof 
the following new paragraph: 
"With 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.". 
Approved November 18, 1988. 
LEGISLATIVE HISTORY—H.R. 4612 (S. 2500): 
HOUSE REPORTS: No. 100-700 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 134 (1988): 
June 27, 28, considered and passed House. 
Oct. 12, considered and passed Senate, amended. 
Oct. 20, House concurred in Senate amendment.