                                                               May 14, 1979


79-31     MEMORANDUM OPINION FOR THE
          ASSISTANT DIRECTOR, LEGAL COUNSEL
          DIVISION, FEDERAL BUREAU OF
          INVESTIGATION

          Federal Bureau of Investigation—Contractual
          Exemption from Liability for Agents’ Negligence in
          FBI Law Enforcement Training (42 U.S.C. § 3744)


   This responds to your request for our opinion whether Federal Bureau
o f Investigation (FBI) agents, providing training to State and local law en­
forcement officers, may require that the officers agree not to sue the FBI
agents individually for injuries that might be caused by the agents’ negli­
gence in connection with such training.
   Section 3744 o f title 42, U.S. Code, 82 Stat. 204, reads in pertinent part
as follows:
        (a)    The Director o f the Federal Bureau o f Investigation is
      authorized to —
           (1)   establish and conduct training programs at the Federal
        Bureau o f Investigation National Academy at Quantico,
        Virginia, to provide, at the request o f a State or unit o f local
        government, training for State and local law enforcement and
        criminal justice personnel;

         (2)   assist in conducting, at the request o f a State or unit o f
      local government, local and regional training programs for the
      training o f State and local law enforcement and criminal
      justice personnel * * *.
                                 * * * * * * *
      (b)    In the exercise o f the functions, powers, and duties estab­
   lished under this section the Director o f the Federal Bureau o f In­
   vestigation shall be under the general authority o f the A ttorney
   General.
Your office has informed us that the relevant facts are as follows. The

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training programs authorized by § 3744 are conducted by FBI Special
Agent police instructors. Several o f these instructors have asked whether
they may require that persons, as a condition to receiving training, agree
not to sue the instructors individually for injuries they may negligently
cause the trainees. We understand that the suggested agreements would
take the form o f “ covenants not to sue” and would in effect be ex­
culpatory agreements for the benefit o f the individual agents. Further, we
have been inform ed that the FBI, as an agency, would not seek to compel
such agreements, but rather that the agreements would be between the
agents in their personal capacities and the trainees. It is contem plated,
however, that those trainees who decline to enter into the agreements will
be barred from participating in the programs.
   You have stressed that the exculpation agreements would only relieve
the individual agents from liability for their negligence, and that the
United States would remain liable for any negligence covered by the
Federal Torts Claims Act. Since double recovery is barred by that Act, 28
U.S.C. § 2676, the trainee would suffer no financial loss by proceeding
solely against the United S tates.1 Indeed, the United States’ ability to pay a
judgm ent makes it the more logical defendant. This is borne out by the
fact that no agent has yet been sued in his personal capacity in connection
with the FBI training program, although there have been training-related
suits against the United States.
   For the reasons that follow we conclude that such agreements are legally
improper and therefore unenforceable.
   First, it should be noted that the training programs are official FBI pro­
grams. Thus, the determ ination whether particular governmental units
and their trainees will be permitted to participate in these programs is for
the FBI to make. Accordingly, since exclusion from the program would re­
quire governmental action, it cannot be done by FBI agents in their per­
sonal capacities. In other words, it cannot be reasonably argued that
restricting participation in the training would not be an official FBI act.
This is for the simple reason that if the FBI did not, in fact, seek to compel
such agreements there would be nothing to prevent persons refusing to
enter the agreements from participating in the training program s.2
Therefore, the short answer is that the agents, as individuals, are not em­
powered to set conditions for entry to a Federal program.
   A part from this consideration, we have serious doubt that the contem ­
plated agreements would be enforceable as a m atter o f common law.


   1 Further, you state that the agreements would only relate to ordinary negligence, that is,
they would not cover gross negligence and willful conduct. The draft agreement that you sent
to us, however, does not clearly m ake such a distinction. Thus, if the agreement were to
operate as you state, it should include a sentence stating that gross negligence and willful con­
duct are not covered.
  1 We understand that instructors in the training program s volunteer for these assignments
and thus retain the option o f not serving as instructors for any reason, including fear o f a suit
against them personally.

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When agents accept the instructor assignments, they assume a duty to the
Government to serve as such. Thus, their agreement to train the partici­
pants in the programs in exchange for executing the covenant not to sue
would appear to involve merely the performance o f a preexisting duty, and
for that reason would not be sufficient consideration to support a con­
tract. Compare, Davis v. Mathews, 361 F. (2d) 899 (4th Cir. 1966). Section
 132 o f Williston on Contracts (3rd ed. 1957) explains this as follows:
      If a promisee is already bound by official duty to render a serv­
     ice, it is no detriment to him, and no benefit to the promisor
     beyond what the law requires the promisee to suffer or to give,
      for him to do or agree to do the service on request. Though the
     previous legal duty does not run to the promisor under the later
     agreement, it runs to the public o f which the prom isor is a
     member, and as such he has a right, even if not one enforceable
     at law, to the performance in question. Therefore, no contract
     can be based on such consideration. [Footnotes omitted.]
To the extent it might be argued that the contracts are supported by a
valuable consideration, a further problem arises under 18 U.S.C. 209, pro­
viding in pertinent part as follows:
     Whoever receives any salary, or any contribution to or supple­
     mentation o f salary, as compensation for his services as an officer
     or employee o f the executive branch o f the United States * * *
     from any source other than the Government o f the United
     States * * * shall be fined not more than $5,000 or imprisoned
     not more than one year, or both.
See also 28 CFR § 45.735-8 (Departm ent of Justice regulation embodying
§ 209’s prohibition). This Office has interpreted these provisions as bar­
ring receipt o f things o f value by a Departm ent employee if they are given
in connection with the employee’s Federal assignment. While we need not
here decide whether § 209 and the Department regulation would be
violated by individual agents exacting the subject agreements from
trainees, they are not in keeping with the spirit o f the cited provisions.
   For these reasons it is our opinion that individual agents may not re­
quire that exculpatory agreements be executed as a condition o f participa­
tion in the training programs.

                                  L arry A . H a m m o n d
                           D eputy Assistant A ttorney General
                                                 Office o f Legal Counsel




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