The Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the Westfall Act, is a law passed by the United States Congress that modifies the Federal Tort Claims Act to protect federal employees from common law tort lawsuits while engaged in their duties for the government.

This is an important tool created to provide taxpayer-funded legal defense for federal employees acting within the reasonable bounds of their employment duties. When used, the Department of Justice assigns U.S. Attorneys to defend the federal employee or agency.

However, what happens when a federal employee or agency acts far outside the reasonable authority of their assigned duties? Too often, the Department of Justice still "certifies" or "affirms" the Westfall Act, providing several U.S. Attorneys to defend the federal employee or agency in court. This free and unlimited resource for federal employees and agencies that may have acted illegally or unconstitutionally puts the victims at a real disadvantage.

In a perfect world, this would never happen, but we do not live in a perfect world. We live in a world full of political corruption, where many argue that the DOJ has become a tool to protect political corruption.

In a Federal District Court case (5:22-cv-01700-JWH-SP), an alleged victim (me) sued the Securities and Exchange Commission (SEC) for negligence in allowing the issuance and re-trading of billions in fraudulent bonds.

Immediately upon the filing of the lawsuit, the Department of Justice certified that the SEC was acting within its discretionary authority and was entitled to be defended by the Department of Justice.

The victim asked the court to decertify the "Westfall Act" certification based on government evidence that the SEC knew about these crimes for a decade and continually allowed the issuance of these bonds in direct contradiction of a dozen federal securities statutes they were created to enforce.

In the victim's mind, this was clearly outside any discretionary authority the SEC may have had. A federal agency cannot support activities that are both illegal and unconstitutional.

The court, in its very limited response, suggested that "if" the DOJ certified that the SEC was acting within its authority, it must be so. Any evidence to the contrary should not be considered since the court assumed the DOJ had already done that.

In this case, the victim provided SEC employee emails showing they knowingly allowed the "known" fraudulent bonds to be issued, a criminal confession that was withheld by the DOJ and the SEC from the American people, and much more. In fact, the victim applied for SEC whistleblower status in 2015, and his claims were found to be specific, significant, and credible by a committee of over forty SEC attorneys. This case should have been settled or decided in a matter of weeks.

Now the case sits with the Ninth Circuit Court (23-3382), where the victim must argue that the Federal District Judge made legal errors and material mistakes of fact in his rulings.

It is nearly impossible for an individual victim to hold the government accountable for illegal or unconstitutional actions, and the abuse of this special legal provision when it is clearly not justified makes it almost impossible to hold the government accountable.

Richard Lawless is an investigative journalist who has written articles for major news publications for over a decade.

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