[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3946 Introduced in House (IH)]







104th CONGRESS
  2d Session
                                H. R. 3946

  To amend title 28 of the United States Code to provide for a remedy 
against the United States for claims based upon conduct involving human 
  experimentation, to provide a remedy against the United States with 
 respect to constitutional and human rights violations, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 1, 1996

 Mr. Torricelli (for himself, Mr. Evans, Mr. LaFalce, and Mr. Moakley) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend title 28 of the United States Code to provide for a remedy 
against the United States for claims based upon conduct involving human 
  experimentation, to provide a remedy against the United States with 
 respect to constitutional and human rights violations, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

                TITLE I--FEDERAL TORT CLAIMS AMENDMENTS

SEC. 101. REMEDY FOR UNLAWFUL HUMAN EXPERIMENTATION.

    Chapter 171 of title 28, United States Code, is amended by 
inserting after section 2680 the following:
``Sec. 2681. Human Experimentation
    ``Section 2680 shall not apply to--
            ``(1) any claim arising out of conduct or research 
        involving a human being as an experimental subject without the 
        informed consent of the subject or a legal representative of 
        the subject; or
            ``(2) any claim arising out of the subjection of a human 
        being to any experimental chemical, radiological, or biological 
        agent, drug, or other test article without the informed consent 
        of the human subject or a legal representative of the subject.
``Sec. 2682. Nuclear Weapons Facility Operations.
    ``Section 2680 shall not apply to any claim arising out of 
operations of any federally owned nuclear weapons facility involved in 
the production of nuclear weapons under the authority of the Secretary 
of Energy or any predecessor which had such authority.''.

SEC. 102. CONFORMING AMENDMENT.

    The table of contents for such chapter 171 is amended by adding 
after the item relating to section 2680 the following:

``2681. Human experimentation.
``2682. Nuclear weapons facility operations.''.

          TITLE II--CONSTITUTIONAL AND HUMAN RIGHTS VIOLATIONS

SEC. 201. JURISDICTION OF DISTRICT COURTS.

    Section 1346(b) of title 28, United States Code, is amended--
            (1) by inserting ``(1)'' after ``(b)'';
            (2) by adding at the end thereof the following new 
        paragraph:
    ``(2) Subject to the provisions of chapter 172, the district courts 
shall have exclusive jurisdiction of civil actions on claims for money 
damages based on constitutional torts.''.

SEC. 202. CONSTITUTIONAL TORTS PROCEDURE.

    Title 28 of the United States Code is amended by inserting after 
chapter 171 the following new chapter:

                  ``CHAPTER 172--CONSTITUTIONAL TORTS

``Sec. 2691. Definitions
    ``As used in this chapter and sections 1346(b)(2) and 2401(b)(2)--
            ``(1) the term `Federal agency' includes any executive 
        department, military department, independent establishment of 
        the United States, any person or entity acting as an 
        instrumentality or agent of the United States, any contractor 
        with the United States, any other establishment of the United 
        States (including the Executive Office of the President), and 
        any party acting in concert with the United States;
            ``(2) the term `employee of the Government' includes 
        officers and employees in the executive branch of the Federal 
        Government, members of the military or naval forces of the 
        United States, members of the National Guard while engaged in 
        training or duty under section 316, 502, 503, 504, or 505 of 
        title 32, and any person acting on behalf of or in concert with 
        a Federal agency, temporarily or permanently in the service of 
        the United States, whether with or without compensation, and 
        whose acts or omissions are done with the knowledge or consent 
        of the United States; and
            ``(3) the term `constitutional tort' means a violation of 
        the Constitution of the United States or violation of human 
        rights resulting from or caused by the act or omission of a 
        Federal agency or an employee of the Government while acting 
        within the scope of the employee's office, employment, or 
        apparent authority, or which results from the negligent 
        supervision of an employee of the Government.
``Sec. 2692. Administrative adjustment of claims
    ``(a) The head of each Federal agency may, in accordance with 
regulations prescribed by the Attorney General, compromise and settle 
any claim for money damages based on a constitutional tort, except that 
any award, compromise, or settlement in excess of $25,000 shall be 
effected only with the prior written approval of the Attorney General.
    ``(b) Any award, compromise, settlement, or determination made 
under this section shall be final and conclusive on the United States, 
except when procured by means of fraud.
    ``(c) Payment of any award, compromise, or settlement made under 
this section or made by the Attorney General in any amount under 
section 2697 shall be paid in a manner similar to judgments and 
compromises in like causes. Appropriations or funds available for the 
payment of such judgments and compromises shall be available for the 
payment of awards, compromises, or settlements under this chapter.
    ``(d) The acceptance by a claimant of any award, compromise, or 
settlement made under this section or section 2697 shall be final and 
conclusive on the claimant, and shall constitute a complete release of 
any claim against the United States and against the employee of the 
Government whose act or omission gave rise to the claim, by reason of 
the same subject matter.
``Sec. 2693. Liability of the United States
    ``(a) The United States shall be liable for compensatory damages 
for any constitutional tort, but shall not be liable for interest prior 
to judgment or for punitive damages except as herein provided. With 
respect to any claim for money damages based on a constitutional tort, 
the United States shall be liable for an amount not greater than 
either--
            (1) actual damages, or
            (2) nominal damages in an amount which is the greater of--
                    (A) $25,000, or
                    (B) in the case of a continuing violation, $500 per 
                day for each violation.
If the conduct giving rise to the constitutional tort claim was 
undertaken willfully or recklessly, the court shall award, in addition, 
exemplary damages as are just and reasonable under the circumstances, 
as determined by the trier of fact.
    ``(b) A class action in conformity with the requirements of the 
Federal Rules of Civil Procedure may be instituted on a constitutional 
tort claim if it satisfies the provisions of rule 23 thereof, and shall 
be maintained where certified by the court before which the action is 
filed.
``Sec. 2694. Disposition by Federal agency as prerequisite; evidence
    ``(a) An action shall not be instituted upon a claim against the 
United States for money damages based on a constitutional tort unless 
the claimant shall have first presented the claim to the appropriate 
Federal agency and that claim shall have been finally denied by the 
agency in writing and sent to the claimant by certified or registered 
mail. The failure of an agency to make final disposition of a claim 
within 6 months after it is filed shall, at the option of the claimant 
any time thereafter, be deemed a final denial of the claim for purposes 
of this section. This subsection shall not apply to such claims as may 
be asserted under the Federal Rules of Civil Procedure by third-party 
complaint, cross-claim, or counterclaim.
    ``(b) Except as to a class action claim or if damages are not fully 
ascertainable at the time of presentation pursuant to subsection (a), 
an action under this section shall not be instituted for any sum in 
excess of the amount of the claim presented to the Federal agency, 
except where the increased amount is based upon newly discovered 
evidence not reasonably discoverable at the time of presenting the 
claim to the Federal agency or upon allegation and proof of intervening 
facts, relating to the amount of the claim.
``Sec. 2695. Jury trial
    ``Any action brought pursuant to this chapter upon a claim for 
money damages based on a constitutional tort shall, at the request of 
any party to such action, be tried by the court with a jury.
``Sec. 2696. Judgment as bar
    ``The judgment in an action under section 1346(b)(2) shall 
constitute a complete bar to any action by the claimant involved, by 
reason of the same constitutional violation against the employee of the 
Government whose act or omission gave rise to the claim, but shall not 
act as a release on any claim for violation of any other law.
``Sec. 2697. Compromise
    ``The Attorney General may arbitrate, compromise, or settle any 
claim cognizable under section 1346(b)(2), after the commencement of an 
action on that claim.
``Sec. 2698. Attorney fees; penalty
    ``(a) Any claimant to whom a judgment is awarded under section 
1346(b)(2), or to whom an award, compromise, or settlement is made 
under section 2697 or 2692 shall, in addition to such judgment, award, 
compromise, or settlement, be entitled to receive a reasonable 
attorney's fee and other litigation costs reasonably incurred, 
including attorney fees and costs attributable to processing an 
administrative claim under section 2692. The amount of such attorney's 
fee may not exceed 25 per cent of any judgment rendered under section 
1346(b)(2) or any award, compromise, or settlement made under section 
2697, except as otherwise approved by the court before whom the action 
is filed, or 20 per cent of any award, compromise, or settlement made 
under section 2692.
    ``(b) Any attorney who charges, demands, receives, or collects for 
services rendered in connection with a judgment, award, compromise, or 
settlement described in subsection (a) any amount in excess of that 
allowed under subsection (a) shall, if recovery be had, be fined not 
more than $2,000 or imprisoned not more than one year, or both.
``Sec. 2699. Exclusiveness of remedy
    ``(a) The authority of any Federal agency to sue and be sued in its 
own name shall not be construed to authorize suits against such Federal 
agency on constitutional tort claims arising under this chapter which 
are cognizable under section 1346(b)(2), and the remedies provided by 
this title in such case shall be exclusive.
    ``(b)(1) Upon filing a claim with the district court under section 
1346(b)(2), the remedy against the United States provided by section 
2693 for claims for money damages based on constitutional torts shall 
be exclusive of any other Federal 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.
    ``(2) Paragraph (1) does not extend or apply to a civil action 
against an employee of the Government--
            ``(A) which is brought against the employee for acting 
        outside the scope of the employee's office or employment in 
        violation of the Constitution of the United States, or
            ``(B) which is brought for a violation of a statute of the 
        United States or a statute of any State under which such action 
        against an individual is otherwise authorized.
    ``(c) The provisions of this chapter shall be limited to 
constitutional tort claims against Federal agencies or employees of the 
Government. Nothing in this chapter shall preclude or preempt suit 
against any person or entity on any other claim, whether based on 
international, Federal, State, or common law, and no provision of this 
chapter shall act as a release, waiver, or bar to such claim.
    ``(d) Upon certification by the Attorney General pursuant to 
subsection (e), the Attorney General shall defend any civil action or 
proceeding brought in any court against any employee of the Government 
or against the estate of such employee for money damages based on any 
constitutional tort. The employee against whom such civil action or 
proceeding is brought shall deliver within such time after date of 
service or knowledge of service as determined by the Attorney General, 
all process served upon the employee or an attested true copy thereof 
to the employee's immediate superior or to whomever was designated by 
the head of the employee's department to receive such papers and such 
person shall promptly furnish copies of the pleadings and process 
therein to the United States attorney for the district embracing the 
place wherein the proceeding is brought, to the Attorney General, and 
to the head of the employee's employing Federal agency.
    ``(e)(1) Upon certification by the Attorney General that the 
defendant was acting within the scope of the defendant's 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 defendant 
was acting within the scope of the defendant's 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 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 the employee's 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 the employee's office or employment, the action or proceeding 
shall be remanded to the State court.
    ``(4) Upon certification, any action or proceeding subject to 
paragraph (1), (2), or (3) shall proceed in the same manner as any 
action against the United States filed pursuant to section 1346(b)(2) 
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 
dismissed for failure to first present a claim pursuant to section 
2694(a), such a claim shall be deemed to be timely presented under 
section 2401(b)(2) 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.
    ``(f) The Attorney General may compromise or settle any claim 
asserted in any civil action or proceeding described in this section in 
the manner provided in section 2697, and with the same effect.
``Sec. 2700. Administrative action concerning employee
    ``Where an action or proceeding under section 1346(b)(2) or 2692 on 
a constitutional tort results in a judgment against the United States 
or an award, compromise, or settlement paid by the United States, the 
Attorney General shall forward the matter to the head of the Federal 
agency which employed the employee at the time of the employee's 
alleged act or omission giving rise to the claim upon which the action 
or proceeding was based, for such further administrative investigation 
or disciplinary action as may be appropriate. In any administrative 
proceeding relating to such investigation or disciplinary action, the 
employee may assert as a defense the employee's reasonable good-faith 
belief in the lawfulness of the employee's conduct.''.

SEC. 203. STATUTE OF LIMITATION, TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Section 2401.--Section 2401(b) of title 28, United States Code, 
concerning the statute of limitations, is amended--
            (1) by inserting ``(1)'' immediately after ``(b)'';
            (2) by inserting ``cognizable under section 1346(b)(1) of 
        chapter 171'' after ``United States'';
            (3) by adding at the end the following: ``any claim arising 
        out of unlawful human experimentation within the meaning of 
        section 2681 shall not be barred if presented in writing to the 
        appropriate Federal agency within 3 years from the date of the 
        enactment of section 2681.''; and
            (4) by adding after paragraph (1) the following:
    ``(2) A claim for money damages based on a constitutional tort 
against the United States cognizable under section 1346(b)(2) of 
chapter 172 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, except that any 
claim accruing prior to enactment of chapter 172 shall not be barred if 
presented in writing to the appropriate Federal agency within 3 years 
from the date of enactment of chapter 172.''.
    (b) Section 2402.--Section 2402 of title 28, United States Code, is 
amended by inserting ``or 1346(b)(2)'' after ``1346(a)(1)''.
    (c) Section 2674.--Section 2674 of title 28, United States Code, is 
amended by inserting immediately after ``claims'' the following: ``to 
which section 1346(b)(1) of this title applies''.
    (d) Multiple Sections.--Sections 2676, 2677, 2678, and 2679 of 
title 28, United States Code, are amended by striking out ``1346(b)'' 
each place it appears and inserting in lieu thereof ``1346(b)(1)''.
    (e) Section 2680.--Section 2680 of title 28, United States Code, is 
amended by striking out ``1346(b)'' and inserting in lieu thereof 
``1346(b)(1)''.
    (f) Section 1402.--Section 1402(b) of title 28, United States Code, 
is amended by striking out ``subsection (b)'' and inserting in lieu 
thereof ``subsections (b)(1) and (b)(2)''.
    (g) Table of Chapters.--The table of chapters for part VI of title 
28, United States Code, is amended by inserting after the item relating 
to chapter 171 the following new item:

``172. Constitutional Torts.................................    2691''.
                                 <all>