Constitutionality of Replacing Federal Tort Claims Act

Liability with an Administrative Claims System

C ongress m ay w ith d raw its w aiver o f sovereign im m unity in the F ederal T o rt C laim s A ct 

for presently pending claim s o f radiation fallout victim s, w h eth er o r not any adm inistrativ e claim s system is created as a substitute.

If it does not w ith d raw its w aiver o f sovereign im m unity, C ongress m ay substitute an 

adm inistrative claim s system for a judicial cause o f action w ithout offending due 

process, as long as the new rem edy is fair and adequate w hen com pared to the old one.

March 25, 1980

MEMORANDUM OPINION FOR TH E DEPUTY ASSISTANT 

ATTORNEY GENERAL, CIVIL DIVISION

This responds to your request for our opinion on the constitutionality 

of a possible statute substituting an administrative claims system for 

Federal Tort Claims Act (FTCA) causes of action for illness allegedly 

due to the effects of fallout from the Atmospheric Nuclear Weapons 

Testing Program at the Nevada Test Site. Although the exact contours 

of such legislation are now a matter of speculation, you have asked us 

to make some basic assumptions about the likely nature of the program. 

We will assume that the statute would have retroactive effect in the 

sense that it would abrogate presently existing causes of action under 

the Federal Tort Claims Act, 28 U.S.C. § 2680. We will also assume 

that the statute would define eligibility for compensation sufficiently 

broadly to include persons with a range of prospects of recovery in 

civil litigation, that it would set a level of benefits that in a particular 

case might be substantially less than tort recovery for a prevailing 

plaintiff, and that ordinary procedures for administrative adjudication 

would be used. We conclude that it is possible for Congress to draft a 

statute having these attributes that will be constitutional.1

I. Congressional Withdrawal of Waivers of Sovereign Immunity

In the Federal Tort Claims Act of 1946, Congress waived the sovereign immunity of the United States for the torts of government employees, “under circumstances where the United States, if a private person,

1 We do not consider here the validity of legislation abrogating any pending claims against 

government officers. Different considerations apply in that context, for example the constitutionality of 

removing the opportunity for a jury trial.

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would be liable to a claimant in accordance with the law of the place 

where the act or omission occurred.” 28 U.S.C. § 1346(b); See also

§§ 2674, 2680. Before that time, those with tort claims against the 

government were left to seek a remedy through a private bill in Congress (as were all claimants against the Government prior to the statute 

creating the Court of Claims, Act of Feb. 24, 1855, 10 Stat. 612). To 

what extent may Congress, having thus waived the sovereign immunity 

of the United States, reassert that immunity retroactively to defeat 

pending claims?

In Lynch v. United States, 292 U.S. 571 (1934), the Supreme Court 

provided a general exposition of congressional power to withdraw 

waivers of sovereign immunity. Beneficiaries of insurance policies 

issued under the War Risk Insurance Act sued for amounts due, alleging that repeal of the statutes governing their insurance deprived them 

of property without due process, in violation of the Fifth Amendment. 

It was clear to the Court that the insurance policies created vested 

property rights that could not be taken without just compensation. 292 

U.S. at 579. Nevertheless, this did not mean that Congress was required 

to afford a judicial remedy:

Contracts between individuals or corporations are impaired within the meaning of the Constitution whenever 

the right to enforce them by legal process is taken away 

or materially lessened. A different rule prevails in respect 

to contracts of sovereigns. Compare Principality o f Monaco

v. Mississippi, [292 U.S. 313 (1934)]. “The contracts between a Nation and an individual are only binding on the 

conscience of the sovereign and have no pretensions to 

compulsive force. They confer no right of action independent of the sovereign , will” [quoting The Federalist 

No. 81 (Hamilton)]. The rule that the United States may 

not be sued without its consent is all embracing.

*****

Although consent to sue was thus given when the 

policy issued, Congress retained power to withdraw the 

consent at any time. For consent to sue the United States 

is a privilege accorded; not the grant of a property right 

protected by the Fifth Amendment. The consent may be 

withdrawn, although given after much deliberation and 

for a pecuniary consideration. DeGroot v. United States, 5 

Wall. 419, 432. . . . The sovereign’s immunity from suit 

exists whatever the character of the proceeding or the 

source of the right sought to be enforced. It applies alike 

to causes of action arising under acts of Congress, 

DeGroot v. United States, 5 Wall. 419, 431; United States v. 

Babcock, 250 U.S. 328, 331; and to those arising from
some violation of rights conferred upon the citizen by the 

Constitution. Schillinger v. United States, 155 U.S. 163,

166, 168. The character of the cause of action—the fact 

that it is in contract as distinguished from tort—may be 

important in determining (as under the Tucker Act) 

whether consent to sue was given. Otherwise, it is of no 

significance. For immunity from suit is an attribute of 

sovereignty which may not be bartered away.

Mere withdrawal of consent to sue on policies for 

yearly renewable term insurance would not imply repudiation. When the United States creates rights in individuals 

against itself, it is under no obligation to provide a 

remedy through the courts. United States v. Babcock, 250 

U.S. 328, 331. It may limit the individual to administrative 

remedies. Tutun v. United States, 270 U.S. 568, 576. And 

withdrawal of all remedy, administrative as well as legal, 

would not necessarily imply repudiation. So long as the 

contractual obligation is recognized, Congress may direct 

its fulfilment without the interposition of either a court or 

an administrative tribunal.

Id. at 580-82 (footnotes omitted). The Court went on to determine that 

Congress’ repeal of the insurance statutes did not “intend to preserve 

the right and merely withdraw consent to sue the United States.” Id. at 

583 (footnote omitted). Accordingly, the Court held that the repeal of 

the insurance statutes was unconstitutional.

It is clear that in Lynch the Court thought that, had Congress merely 

abrogated the claimants’ remedy by withdrawing consent to sue, the 

effect would have been to remit them to private bills for redress of the 

taking of their property. To the same effect is Perry v. United States,

294 U.S. 330, 331 (1935), in which the Court held that the Government 

could not rescind obligations for payment of its bonds in gold, because 

the power of Congress “to borrow Money on the credit of the United 

States” (Article 1, § 8) creates the power to enter binding obligations. 

The Court remarked, however:

The fact that the United States may not be sued without 

its consent is a matter of procedure which does not affect 

the legal and binding character of its contracts. While the 

Congress is under no duty to provide remedies through 

the courts, the contractual obligation still exists and, despite infirmities of procedure, remains binding upon the 

conscience of the sovereign. Lynch v. United States, supra,

pp. 580, 582.

294 U.S. at 354.

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A more recent reaffirmation of Lynch is found in Maricopa County v. 

Valley National Bank, 318 U.S. 357, 362 (1943). The Court held that 

Congress, having granted states the right to tax a federal instrumentality, could retroactively withdraw that consent despite the fact that 

states had acquired liens in the interim. It brushed aside claims that a 

Fifth Amendment violation had occurred with the observation that the 

states could only enforce any rights they had acquired through a suit 

against the United States, and “[n]o such suit may be maintained without the consent of the United States. Such consent, though previously 

granted, has now been withdrawn. And the power to withdraw the 

privilege of suing the United States or its instrumentalities knows no 

limitations.” Lynch v: United States, 292 U.S. 571, 581-582, and cases 

cited.

As Maricopa County recognized, Lynch has been decided against a 

background of earlier cases in much the same vein. Illustrative is 

District o f Columbia v. Eslin, 183 U.S. 62 (1901). Congress had enacted 

a statute granting jurisdiction to the Court of Claims over certain 

claims involving public works in the District of Columbia. Suits under 

this act were pursued to judgment, but before the judgments were paid 

Congress repealed the statute, explicitly providing that “proceedings 

pending shall be vacated, and no judgment heretofore rendered in 

pursuance of such act shall be paid.” 183 U.S. at 64, citing 29 Stat. 665, 

669. The Court, asked to review the judgments of the Court of Claims, 

dismissed the appeal for want of jurisdiction, on grounds that a Supreme Court declaration of the rights of the parties would now be 

advisory. The Court stated:

It was an act of grace upon the part of the United States 

to provide for the payment by the Secretary of the Treasury of the amount of any final judgment rendered under 

that act. And when Congress by the act of 1897 directed 

the Secretary not to pay any judgment based on the act of 

1895, that officer could not be compelled by the process 

of any court to make such payment in violation of the act 

of 1897. A proceeding against the Secretary having that 

object in view would, in legal effect, be a suit against the 

United States; and such a suit could not be entertained by 

any judicial tribunal without the consent of the Government.

183 U.S. at 65.

If this line of Supreme Court cases is still good law, Congress should be 

able to withdraw the FTCA’s waiver of sovereign immunity for pending claims of fallout victims, whether or not any administrative claims 

system is created as a substitute. In view of the early practice of leaving 

all claimants against the Government to seek relief from Congress,

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followed for over a half-century of this nation’s existence, it is hard to 

dispute the Court’s conclusion that there is no constitutional right to a 

judicial remedy. Indeed, FTCA claims would seem to be a fortiori from 

Lynch and Perry, since tort claims do not involve vested rights protected against substantive interference by Congress, as did that contract 

rights considered in those two cases. Thus, Congress could simply 

amend the FTCA to add another exception to 28 U.S.C. § 2680, for 

present and future claims arising from the activities of the United States 

in conducting nuclear weapons tests at the Nevada Test Site. For a 

number of reasons, however, we think it may be imprudent to rest 

exclusively on the Lynch line of cases. First, the extensive dicta in 

Lynch itself occurred in a case in which the Court was overturning a 

congressional attempt to repeal the insurance statutes in question, as a 

violation of the just compensation requirement of the Fifth Amendment. Second, neither in Lynch itself nor in any later case has the Court 

actually countenanced so harsh an action as the retroactive withdrawal 

of an individual’s tort cause of action with little or no substitute 

remedy.

Moreover, in recent years the Supreme Court has substantially expanded its definition of interests falling within the “property” that is 

protected by the due process clause, including statutory entitlements to 

many kinds of governmental benefits. See, e.g., Goldberg v. Kelly, 397 

U.S. 254, 262 and n.8 (1970). This development may undermine Lynch's

characterization of a cause of action against the Government as a 

“privilege.” See de Rodulfa v. United States, 461 F.2d 1240, 1258 (D.C. 

Cir.), cert, denied, 409 U.S. 949 (1972). It can be argued that causes of 

action resemble other government benefits in that even if there is no 

initial right to have them, once they are conferred they may not be 

withdrawn arbitrarily.

Still, it must be recognized that the Court has yet to hold or even 

suggest that withdrawal of a waiver of sovereign immunity is subject to 

due process constraints. The issue of the effect of Goldberg and its 

progeny on Lynch is an open one—accordingly, we cannot exclude the 

possibility that abrogation of pending causes of action might receive 

some scrutiny by the courts, as does other retroactive governmental 

action.

In addition, a leading sovereign immunity case has recognized a 

“constitutional exception to the doctrine of sovereign immunity” that 

allows the maintenance of a suit to contest an alleged taking of real 

property by the Government without just compensation. Larson v. 

Domestic & Foreign Commerce Corp., 337 U.S. 682, 696 (1949), citing 

United States v. Lee, 106 U.S. 196 (1882). This “exception” is inconsistent with Lynch’s dictum that there is no right to a judicial remedy even 

for claims of constitutional origin. Thus, if any of the fallout claimants

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can successfully characterize their injuries as takings, it might be possible for them to escape the bar of the Lynch line of cases.

Finally, it may be that in substituting a fallout claims system for 

existing causes of action, Congress will be unwilling explicitly to 

reassert the bar of sovereign immunity. In recent years, Congress has 

generally expanded, not contracted its waivers of sovereign immunity. 

See, e.g.. Pub. L. No. 93-253, 88 Stat. 50, amending the FTCA to allow 

recovery for torts of law enforcement officers, 28 U.S.C. § 2680(h). 

And a reassertion of immunity against the fallout plaintiffs, even with a 

substitute claims system, could have an appearance of harshness that 

Congress would avoid if possible. If Congress were simply to create a 

claims system and to provide for its exclusiveness as a remedy without 

adding a new exception to the FTCA, the courts might conclude that 

Congress had merely altered the remedy against the United States, 

without reasserting sovereign immunity. The likelihood of such a result 

is suggested by the Lynch Court’s unwillingness to treat an ambiguous 

statute as a reassertion of soverign immunity. The consequence would 

be to subject the statute to due process review, a prospect to which we 

now turn.

II. Due Process and Legislative Alteration of Causes of Action

Shortly after Lynch was decided, the Supreme Court avoided reaching due process objections to a statute retroactively substituting an 

administrative claims system for a cause of action, by determining the 

new remedy to be “fair and adequate.” In Anniston Mfg. Co. v. Davis,

301 U.S. 337 (1937), the plaintiff filed a lawsuit against the Collector of 

Internal Revenue to obtain a refund of an allegedly illegal tax. Congress then substituted an exclusive administrative remedy, which was 

apparently designed to afford the same measure of recovery as the 

abrogated cause of action. 301 U.S. at 345, 351. The Government 

argued that no decision on Congress’ power to withdraw suit against 

the Collector and the Government was necessary since the new remedy 

was “fair and adequate.” 2 The Supreme Court agreed and inquired into 

the sufficiency of the statute’s provisions for administrative adjudicative 

procedures and judicial review. It found them adequate to determine 

pertinent questions of fact and law. 301 U.S. at 341-43. Thus Anniston

does not provide support for the validity of legislative substitution of 

limited administrative benefits for the full measure of tort compensation. It does suggest that a claims system should employ well-established techniques for administrative adjudication and subsequent judicial

2 Two reasons may account for the Court's apparent perception of a need to avoid constitutional 

issues in Anniston. The first is the “constitutional exception to sovereign immunity" in taking cases, 

discussed in text above. The second is that the statute abrogated suits against both the Government 

and the officer involved.

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review, such as those in the Administrative Procedure Act, 5 U.S.C. 

§§ 556-557, 701-706.

More recently, in Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978), the Court upheld against a due process 

challenge the Price-Anderson Act, 42 U.S.C. §2210, which limits the 

liability of the nuclear power plant operators for the consequences of 

accidents. The Court viewed the liability limitation as an ordinary 

legislative balancing of economic interests, and accorded it standard 

rationality review, which it passed readily. Of particular interest here is 

the Court’s response to the plaintiffs argument that the liability limitation offended due process by failing to provide those injured by a 

nuclear accident with a satisfactory quid pro quo for the common law 

rights of recovery which the Act restricted. The Court concluded that 

the Act provided a “reasonably just substitute” for the tort law remedies it replaced. 438 U.S. at 93. In support of the fairness of the 

arrangement, the Court cited the assurance of a $560 million fund for 

recovery, in place of the uncertain resources of private defendants, and 

the Act’s requirement that utilities waive state tort law defenses, which 

eliminated requirements for proof of fault and accompanying delay and 

uncertainty in litigation. The Court seemed to think that the Act placed 

prospective plaintiffs in at least as favorable a position as they would 

have occupied under the common law. Thus Duke Power, like Anniston,

provides little support for the validity of a system that materially 

disadvantages claimants. The Court concluded:

In the course of adjudicating a similar challenge to the 

Workmen’s Compensation Act in New York Central R.

Co. v. White, 243 U.S. at 201, the Court observed that the 

Due Process Clause of the Fourteenth Amendment was 

not violated simply because an injured party would not be 

able to recover as much under the Act as before its 

enactment. “[H]e is entitled to moderate compensation in 

all cases of injury, and has a certain and speedy remedy 

without the difficulty and expense of establishing negligence or proving the amount of the damages.” The logic 

of New York Central would seem to apply with renewed 

force in the context of this challenge to the Price-Anderson Act. The Price-Anderson Act not only provides a 

reasonable, prompt, and equitable mechanism for compensating victims of a catastrophic nuclear incident, it also 

guarantees a level of net compensation generally exceeding that recoverable in private litigation. . . . This panoply 

of remedies and guarantees is at the least a reasonably just 

substitute for the common-law rights replaced by the 

Price-Anderson Act. Nothing more is required by the 

Due Process Clause.

438 U.S. at 92-93.

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In Duke Power, the Court was dealing with prospective legislation—no 

claims for a nuclear accident were then outstanding. The legislation 

upheld in New York Central appears to have been prospective also. The 

Court’s approach to the validity of retroactive legislation under the 

Due Process Clauses of the Fifth and Fourteenth Amendments is, 

however, not greatly different from that of Duke Power, even though 

substantial new burdens may be imposed. The ordinary standard is that 

due process “generally does not prohibit retrospective civil legislation, 

unless the consequences are particularly ‘harsh and oppressive’,” United

States Trust Co. o f New York v. New Jersey, 431 U.S. 1, 17 n. 13 (1977), 

citing Welsh v. Henry, 305 U.S. 134, 147 (1938) and Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 14-20 (1976). In Usery, the Court 

upheld the Black Lung Benefits Act, although it required mine operators to pay workman’s compensation benefits to miners on a retroactive 

basis. The Court said:

But our cases are clear that legislation readjusting rights 

and burdens is not unlawful solely because it upsets otherwise settled expectations. . . . This is true even though the 

effect of the legislation is to impose a new duty or liability 

based on past acts.

428 U.S. at 16.

In Usery, the Court thought that retroactive imposition of an obligation 

to pay compensation was a rational application of the enterprise liability 

principles of modern tort analysis, according to which a business may 

be required to absorb the cost of the injuries it causes, regardless of the 

presence of fault in the traditional sense. The Court remarked that 

whether a broader or narrower cost-spreading scheme would be better 

did not rise to the level of a constitutional issue. 428 U.S. at 19.

Usery does not necessarily represent the high-water mark of judicial 

willingness to allow retroactive legislative alteration of compensation 

rights against private parties. The courts of appeals have upheld legislative abrogation of existing causes of action with no countervailing 

benefit—at least where the causes of action were themselves in the 

nature of windfalls, due to surprising judicial interpretation of earlier 

statutory provisions.3 Both Usery and these court of appeals decisions 

seem to rest on notions of fairness—it would be unsound to extend 

them to the arbitrary alteration of compensation rights.

3 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948) (Portal-to-Portal Act); Seese v. 

Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948) (Portal-to-Portal Act). De Rodulfa v. United Stales,

461 F.2d 1240, 1250 (D.C. Cir.), cert, denied. 409 U.S. 949 (1972), cites cases for the general rule that a 

change in governing law may be retroactively applied to pending litigation. E.g., United States v. 

Schooner Peggy, 5 U.S. 103 (1 Cranch) (1801) (Marshall, J ). Indeed, such a change may even affect 

rights incident to final judgments. See Fleming v. Rhodes, 331 U.S. 100 (1947), upholding requirements 

for administrative approval of suits to enforce judgments granting possession to property.

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III. The Government’s Adjustment of Its Own Liabilities—Analogies 

from the Contract Clause

What standard of review should apply to a government’s adjustment 

of its own preexisting obligations? In Usery and Duke Power, the Court 

applied rationality scrutiny to federal statutes adjusting rights and burdens among private parties. (In Duke Power, although federal indemnity 

was a large part of the liability pool provided by the Price-Anderson 

Act, the Government was not reducing its own prior liability.) In 

litigation under the Contract Clause (art. I, § 10), which only applies to 

the states, the Court has suggested that a more stringent standard 

applies to a government’s attempt to modify its own obligations. In 

United States Trust Co. o f New York v. New Jersey, supra, the Court 

invalidated an attempt by New Jersey to modify a contract with some 

of its bondholders. The state had eliminated an important security 

provision for the bondholders, without granting them a countervailing 

compensation. The Court remarked:

The Contract Clause is not an absolute bar to subsequent 

modification of a State’s own financial obligations. As 

with laws impairing the obligations of private contracts, 

an impairment may be constitutional if it is reasonable and 

necessary to serve an important public purpose. In applying this standard, however, complete deference to a legislative assessment of reasonableness and necessity is not 

appropriate because the State’s self-interest is at stake.

431 U.S. at 25-26 (footnote omitted).

In general, federal cases under the Due Process Clause closely parallel the Contract Clause cases. This suggests that if the Court abandons 

the view of sovereign immunity it articulated in Lynch, it is likely to 

employ the higher level of scrutiny articulated in United States Trust

Co. when it reviews the Government’s adjustment of its own obligations—especially when the Government disadvantages private parties 

retroactively with no compensating benefits. That does not mean that 

such heightened scrutiny will necessarily apply in the case at hand. 

Since there is presently genuine uncertainty regarding the ultimate cost 

to the Government of pending FTCA litigation, it is not clear that the 

substitution of a claims system will be seen principally as an “economy” 

measure.

It should be possible to draft a valid statute creating an exclusive 

administrative claims system, even if the test of United States Trust Co.

is applied. In that case, the Court identified alternative means to the 

state’s end, and emphasized the direct invasion of reliance that typically 

attends a Contract Clause case. The latter is not present here; as for the 

former, if the Government’s purpose is to provide a broader allocation 

of benefits than the FTCA would produce, the only alternative would

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be to establish a nonexclusive administrative claims system, leaving 

plaintiffs the option to pursue FTCA litigation. Although arguments for 

governmental economizing were discounted by the United States Trust

Co. Court, that was probably because the state gave the bondholders no 

countervailing benefit. That need not be true here; the need to conserve 

limited public resources by making the administrative claims system 

exclusive should be given enough weight to uphold the statute, if it 

accords claimants sufficient advantages to ensure the fairness of the 

overall result.

IV. Application of Due Process Analysis to an Administrative Claims 

System for Fallout Victims

Assuming that due process applies in the case before us, the question 

therefore seems to be whether an administrative claims system can 

provide a “reasonably just substitute” (Duke Power) for existing causes 

of action, or a “reasonable and necessary” means to “an important 

public purpose” (United States Trust Co.). For a statute to satisfy even 

the more stringent of these tests, it should only be necessary that it 

grant claimants substantial advantages as a quid pro quo for their causes 

of action. A number of substantial hurdles presently stand in the way of 

recovery by private plaintiffs under the Federal Tort Claims Act. First, 

it is not clear that plaintiffs will be able to establish the Government’s 

liability. The “discretionary function” exception of 28 U.S.C. § 2680(a) 

will preclude liability for all planning decisions involved in the tests, as 

opposed to operational ones. Dalehite v. United States, 346 U.S. 15 

(1953). It has been held, however, that negligent failure to warn those 

in the path of fallout is actionable. Bulloch v. United States, 133 F. 

Supp. 885, 888 (D. Utah, 1955); but see Bartholomae Corp. v. United

States, 135 F. Supp. 651 (S.D. Cal., 1955) (no liability for damage from 

atomic blast; duty to warn not discussed). Second, many plaintiffs may 

be unable to prove that fallout caused their illness. Estimating the 

dosage received by a particular individual and linking that to the 

etiology of a particular cancer is, under all current assessments, often 

very difficult. Third, some claims may be barred by the statute of 

limitations, 28 U.S.C § 2401(b). (It has been held that the two-year 

period runs from the time a radiogenic illness is discovered or should 

have been discovered, and not from the date of exposure. Kuhne v. 

United States, 267 F. Supp. 649 (E.D. Tenn., 1967).) In any event, the 

litigation involved is sure to be time-consuming, considering the technical complexity of much of the proof. Still, it can be argued that 

ultimate recovery to the successful plaintiff in a tort action would be in 

a much higher amount than under an administrative claims system, 

perhaps impelling the Government to enter favorable settlements of 

some claims.

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The particular structure of a claims system can help to ensure its 

constitutional validity. First, eligibility criteria for filing claims can 

reflect probabilities of both serious initial exposure levels to fallout and 

the correlation of particular cancers with exposure to radiation. To the 

extent that these criteria would allow compensation to some persons 

whose showing of causation would not likely satisfy a trier of fact in 

litigation, the Government will confer an advantage on claimants as a 

class. Moreover, the program would be responding as precisely as 

possible to increased risks that we know the affected population has 

encountered, although we cannot be sure exactly which persons suffered the greatest exposure or exactly which cancers are the result of 

that exposure. Thus there is evident fairness in a set of eligibility 

criteria based on probabilities.

With regard to amounts of compensation, the larger the pool of 

claimants the less feasible it becomes to approach full tort compensation. But insofar as compensation would duplicate that recovery, by 

providing for medical expenses and perhaps some income support, 

claimants are not disadvantaged. If recovery for pain and suffering is 

the major element of tort recovery to be eliminated, the statute will 

resemble other government compensation programs in that respect. It is 

easier to justify a claims program that is on an entitlement basis, rather 

than one payable from a limited fund.4

The administrative procedures used to adjudicate claims are particularly important, because they can eliminate procedural features of litigation that would proably defeat private claims, such as the pertinent tort 

burdens of proof.5 As we commented above, the Administrative Procedures Act provides a general structure for both adjudicative procedure 

and judicial review.

V. Conclusion

From the foregoing, two central conclusions emerge. First, if the 

primary goal of this proposed legislation is to minimize the risk of 

successful constitutional challenge, the preferable course will be for this 

bill plainly to indicate that it is Congress’ intent to rescind its waiver of 

sovereign immunity for this class of cases. Lynch suggests that this 

course presents no constitutional question—at least in terms of the 

judicial reviewability of the action—and despite considerable development in the analogous areas of the law discussed above, we know of no 

direct precedent that would call into question the broad language of 

that Supreme Court case. Second, even if the bill is reviewed under due

4 If a limited fund is established, part can be reserved for illness that is still latent. This is a feature 

of the Price-Anderson Act, 42 U.S.C. §2210(o).

5 Administrative procedures often use flexible techniques not available to courts to achieve such 

results. E.g., in Usery, the Act provided for rebuttable presumptions favoring claimants, for example 

that deaths occurring in prior years had been due to black lung disease in stated circumstances.

526
process rationales discussed above, there is good reason to conclude 

that it will comfortably survive attack so long as the eligibility criteria 

are reasonably flexible, the amount of compensation reasonably generous, and the administrative process consistent with ordinary procedure 

for adjudicating claims. We would be pleased to review further any 

particular proposal.

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

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