§2712 — Title 18 Crimes and Criminal Procedure | U.S. Code

Summary

Anyone harmed by a willful violation of this chapter, chapter 119, or certain parts of the Foreign Intelligence Surveillance Act can sue the United States in federal court for money. If the person proves the violation, the court can award actual damages but not less than $10,000 (whichever is greater) and the reasonable costs of the lawsuit. Before suing, the person must first present a written claim to the right agency under the Federal Tort Claims Act procedures. The claim must be filed with the agency within 2 years after the claim accrues, and a lawsuit must start within 6 months after the agency mails a final denial. A trial under this law is decided by a judge, not a jury. Any award the court orders must be repaid by the agency into the government fund described in 31 U.S.C. 1304 from the agency’s operating money, except funds set aside for enforcing laws. If a court or agency finds a violation and the facts raise serious doubt about whether an officer acted willfully or intentionally, the agency must quickly open a review to decide on discipline. If the agency head decides not to discipline the employee, they must tell the Inspector General and explain why. Suing under this rule is the only way to get money from the United States for these claims. The government can ask the court to pause the case if civil discovery would hurt a related investigation or criminal case; that pause stops the time limits from running. “Related criminal case” and “related investigation” mean an actual prosecution or investigation already in progress when the stay is requested, and the court looks at how similar the parties, witnesses, facts, and circumstances are. The government may give secret evidence to the judge to support a stay, but the plaintiff gets a chance to respond in public.

Title 18, §2712

Crimes and Criminal Procedure — Source: USLM XML via OLRC

(a)Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of section 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes such a violation of this chapter or of chapter 119 of this title or of the above specific provisions of title 50, the Court may assess as damages—

(1)actual damages, but not less than $10,000, whichever amount is greater; and

(2)litigation costs, reasonably incurred.

(b)(1)Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code.

(2)Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The claim shall accrue on the date upon which the claimant first has a reasonable opportunity to discover the violation.

(3)Any action under this section shall be tried to the court without a jury.

(4)Notwithstanding any other provision of law, the procedures set forth in section 106(f), 305(g), or 405(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which materials governed by those sections may be reviewed.

(5)An amount equal to any award against the United States under this section shall be reimbursed by the department or agency concerned to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, fund, or account that is available for the enforcement of any Federal law) that is available for the operating expenses of the department or agency concerned.

(c)If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

(d)Any action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section.

(e)(1)Upon the motion of the United States, the court shall stay any action commenced under this section if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or the prosecution of a related criminal case. Such a stay shall toll the limitations periods of paragraph (2) of subsection (b).

(2)In this subsection, the terms “related criminal case” and “related investigation” mean an actual prosecution or investigation in progress at the time at which the request for the stay or any subsequent motion to lift the stay is made. In determining whether an investigation or a criminal case is related to an action commenced under this section, the court shall consider the degree of similarity between the parties, witnesses, facts, and circumstances involved in the 2 proceedings, without requiring that any one or more factors be identical.

(3)In requesting a stay under paragraph (1), the Government may, in appropriate cases, submit evidence ex parte in order to avoid disclosing any matter that may adversely affect a related investigation or a related criminal case. If the Government makes such an ex parte submission, the plaintiff shall be given an opportunity to make a submission to the court, not ex parte, and the court may, in its discretion, request further information from either party.

Notes & Related Subsidiaries

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References in Text

section 106, 305, and 405 of the Foreign Intelligence Surveillance Act of 1978, referred to in subsecs. (a) and (b)(4), are classified to section 1806, 1825, and 1845, respectively, of Title 50, War and National Defense. The Federal Tort Claims Act, referred to in subsec. (b)(1), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as section 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

§2712 Civil Actions Against the United States

Summary

Title 18, §2712

Notes & Related Subsidiaries

Editorial Notes

References in Text

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