FEDERAL BUREAU OF INVESTIGATION-CORRECTIONAL INTELLIGENCE TASK FORCE

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28. The Parties understand that this MOU does not alter applicable state and federal law that might govern any claim of civil liability arising out of their participation in the CITF. a. COMMON LAW TORT CLAIMS i. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the U.S. Government, acting within the scope of his or her employment, shall be an action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and §§ 2671-2680. ii. Notwithstanding any other provision contained in this MOU, for the limited purpose of defending civil claims arising out of CITF activity, any employee detailed from a Participating Agency who is acting within the course and scope of his or her official duties and assignments pursuant to this MOU may be considered an "employee" of the U.S. government, as defined at 28 U.S.C. § 2671. See 5 U.S.C. § 3374(c)(2). iii. Under the Federal Employee Liability Reform and Tort Compensation Act of 1998 (commonly known as the Westfall Act), see 28 U.S.C. § 2679(b)(1), if an employee of the United States is named as a defendant in a civil action, the Attorney General or his or her designee may certify that the defendant acted within the scope of his or her employment at the time of the incident giving rise to the suit. 28 U.S.C. § 2679(d)(1)&(2). The United States can then be substituted for the employee as the sole defendant with respect to any tort claims alleged in the action. 28 U.S.C. § 2679(d)(1)&(2). Decisions to certify that an employee was acting within the scope of his or her employment at the time of the incident giving rise to the suit, see 28 U.S.C. § 2679(d)(1)&(2), are made on a case -by case -basis, and such certification cannot be guaranteed. iv. If the Attorney General declines to certify that an employee was acting within the scope of employment, "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." 28 U.S. C. § 2679(d)(3). b. INDIVIDUAL CAPACITY CLAIMS UNDER THE U.S. CONSTITUTION OR FEDERAL STATUTES i. Liability for violations of the U.S. Constitution may rest with the individual agent or officer acting under color of federal law pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) or pursuant to 42 U.S.C. § 1983 for officers acting under color of state law. Other federal statutes may also allow for individual capacity claims against agents or officers acting under color of law. ii. Federal, state, local, and tribal officers enjoy qualified immunity from suit for alleged violations of the U.S. Constitution and most federal statutes that create an express or implied cause of action for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). FOR OFFICIAL USE ONLY This document is the property or the FBI and the Cm Neither it nor its contents my be released without authorisation In, the FBI and the City