[Congressional Record Volume 143, Number 89 (Monday, June 23, 1997)]
[House]
[Pages H4140-H4141]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FEDERAL TORT CLAIMS CLARIFICATION ACT

  Mr. HYDE. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1901) to clarify that the protections of the Federal Tort Claims 
Act apply to the members and personnel of the National Gambling Impact 
Study Commission.
  The Clerk read as follows:

                               H.R. 1901

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

     SECTION 1. APPLICABILITY OF FEDERAL TORT CLAIMS PROVISIONS.

       Section 6 of the National Gambling Impact Study Commission 
     Act (18 U.S.C. 1955 note) is amended by adding at the end the 
     following:
       ``(e) Applicability of Federal Tort Claims Provisions.--For 
     purposes of sections 1346(b) and 2401(b) and chapter 171 of 
     title 28, United States Code, the Commission is a `Federal 
     agency' and each of the members and personnel of the 
     Commission is an `employee of the Government'.''.

     SEC. 2. CONSTRUCTION.

       The amendment made by section 1 shall not be construed to 
     imply that any commission is not a ``Federal agency'' or that 
     any of the members or personnel of a commission is not an 
     ``employee of the Government'' for purposes of sections 
     1346(b) and 2401(b) and chapter 171 of title 28, United 
     States Code.

     SEC. 3. EFFECTIVE DATE.

       The amendment made by section 1 shall be effective as of 
     August 3, 1996.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Illinois [Mr. Hyde] and the gentleman from Massachusetts [Mr. Frank] 
each will control 20 minutes.
  The Chair recognizes the gentleman from Illinois [Mr. Hyde].
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, today the House considers H.R. 1901, a bill to clarify 
that the protections of the Federal Tort Claims Act apply to members 
and employees of the National Gambling Impact Study Commission.
  Last year, we authorized the Commission to conduct a comprehensive 2-
year study of the impact of gambling on the United States. The members 
of the commission have now been appointed and the commission held its 
first meeting last Friday. Two members of the commission have called me 
regarding their concerns about incurring personal liability as a result 
of their work on the commission.
  Normally, under the Federal Tort Claims Act, when someone sues a 
Federal employee for acts occurring within the scope of his or her 
employment, the United States substitutes itself as the party, defends 
the action, and pays any judgment. I believe that the commission is 
covered under the FTCA because it is an independent establishment of 
the United States.
  For that reason, I initially believed we could resolve this matter by 
an exchange of letters with the Department of Justice. After several 
weeks of study, the Department has not been able to come to a clear 
resolution of whether the commission is or is not covered by the FTCA. 
With the commission having already begun its work, I believe we must 
move forward with a legislative solution.
  H.R. 1901 simply provides that for purposes of the Federal Tort 
Claims Act, the commission is a Federal agency and its members and 
employees are Federal employees. At the suggestion of the gentleman 
from Michigan, Mr. John Conyers, we have added language that makes it 
clear that by acting explicitly in this case we will not by implication 
affect the FTCA's status of any other commission.
  As it does in all FTCA cases, the Department of Justice will still 
make the determination of whether the particular conduct at issue is 
within the scope of employment. Thus, members and employees of the 
commission will not receive any special treatment; rather, they will 
receive the same treatment as all other Federal employees. This 
treatment will apply equally to all members and employees of the 
commission. The members and employees should not have to put their 
personal assets at risk in order to serve their country. For that 
reason, I urge the house to suspend the rules and pass the bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, I agree with what the gentleman from Illinois [Mr. Hyde] 
has said about this bill. I do feel constrained to point out that I 
think these are unnecessary Federal employees doing an unnecessary job. 
I still do not understand why the Federal Government thinks the States 
cannot handle this. But as long as we have set up this commission, over 
my objection, there is no reason to immunize these commissioners.
  The Federal Tort Claims Act is a perfectly sensible approach. I have 
to say it is unlikely that any of the commissioners are going to get 
sued. I am not sure for what. I do not think counting cards at a casino 
where they play blackjack is a suable offense. But in case it is, if 
the commissioners are sued for tortious interfering with other people's 
gambling, they will be able to defend themselves under the Federal Tort 
Claims Act. This seems to me a

[[Page H4141]]

perfectly reasonable solution to a problem which we should not have 
allowed to arise in the first place.
  Mr. CONYERS. Mr. Speaker, I rise in support of this legislation 
amending the National Gambling Impact Study Commission. Chairman Hyde 
introduced this bill after two of the Commissioners, James Dobson, 
president of Focus on the Family, and Kay James, dean of Regent 
University, refused to serve on the commission unless they were assured 
that they cannot be sued for their work on the Commission. Apparently, 
Mr. Dobson served on a pornography commission in the 1980's at which 
time he was sued over his work on the commission. Although the 
Department of Justice eventually did defend him, it was only because 
the Attorney General had been named in the same suit.
  Now, because the Department of Justice will not agree that a member 
of the Gambling Commission is a Federal employee for purposes of 
liability under the Federal Tort Claims Act, Chairman Hyde has 
introduced this legislation specifically providing that the Gambling 
Commission is a Federal agency under FTCA and that all members and 
personnel of the Commission are Federal employees under the act.
  The legislation also includes a rule of construction making it clear 
that this bill does not imply that other commissions or other members 
or personnel on other commissions are not covered by the FTCA.
  Given the fact that two commissioners may resign without assurances 
that they will not be sued for their work, I understand the desire to 
quickly pass this legislation. Nonetheless, I do have some concerns.
  When we have created other commissions in the past, we have been 
silent as to whether or not the commissioners were covered by the 
Federal Tort Claims Act. I don't know whether we assumed they were 
covered or we assumed they weren't covered, but it seems to me that we 
should consider the consequences of what it means to change the law to 
clearly cover such individuals. This issue is likely to come up again 
since I would imagine that other people might also be hesitant to serve 
on future commissions without assurances that they will be defended in 
the event of suits, particularly given that at least the Gambling 
Commissioners now have this protection.
  I think it would be very useful for the committee to hold hearings 
considering the definitions of Federal agency and employee of the 
Government under the Federal Tort Claims Act. There are questions not 
only as to whether commissions are covered, but as to whether 
committees, boards and other quasi-governmental organizations are 
covered as well. Since the Federal Tort Claims Act is unclear in this 
regard, perhaps the best course of action would be to amend that act 
itself to be clear as to which governmental and quasi-governmental 
entities are covered.
  The bottom line is that we shouldn't have to guess as to whether or 
not a certain entity is covered by the Federal Tort Claims Act. If the 
law is unclear, we should determine what should be covered and then 
make certain that those entities are covered. I hope the chairman will 
consider holding hearings and perhaps even moving legislation--should 
it be appropriate--to clear up this morass.
  In the meantime, however, I support the passage of this legislation.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield back the balance of 
my time.
  Mr. HYDE. Mr. Speaker, I have no further requests for time and I 
yield back the balance my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Illinois [Mr. Hyde] that the House suspend the rules and 
pass the bill, H.R. 1901.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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