I

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 3946 IH

1 TITLE I—FEDERAL TORT CLAIMS

2 AMENDMENTS

3 SEC. 101. REMEDY FOR UNLAWFUL HUMAN EXPERIMEN4 TATION.

5 Chapter 171 of title 28, United States Code, is

6 amended by inserting after section 2680 the following:

7 ‘‘§ 2681. Human Experimentation

8 ‘‘Section 2680 shall not apply to—

9 ‘‘(1) any claim arising out of conduct or re10 search involving a human being as an experimental

11 subject without the informed consent of the subject

12 or a legal representative of the subject; or

13 ‘‘(2) any claim arising out of the subjection of

14 a human being to any experimental chemical, radio15 logical, or biological agent, drug, or other test article

16 without the informed consent of the human subject

17 or a legal representative of the subject.

18 ‘‘§ 2682. Nuclear Weapons Facility Operations.

19 ‘‘Section 2680 shall not apply to any claim arising

20 out of operations of any federally owned nuclear weapons

21 facility involved in the production of nuclear weapons

22 under the authority of the Secretary of Energy or any

23 predecessor which had such authority.’’.
3

•HR 3946 IH

1 SEC. 102. CONFORMING AMENDMENT.

2 The table of contents for such chapter 171 is amend3 ed by adding after the item relating to section 2680 the

4 following:

‘‘2681. Human experimentation.

‘‘2682. Nuclear weapons facility operations.’’.

5 TITLE II—CONSTITUTIONAL AND

6 HUMAN RIGHTS VIOLATIONS

7 SEC. 201. JURISDICTION OF DISTRICT COURTS.

8 Section 1346(b) of title 28, United States Code, is

9 amended—

10 (1) by inserting ‘‘(1)’’ after ‘‘(b)’’;

11 (2) by adding at the end thereof the following

12 new paragraph:

13 ‘‘(2) Subject to the provisions of chapter 172, the dis14 trict courts shall have exclusive jurisdiction of civil actions

15 on claims for money damages based on constitutional

16 torts.’’.

17 SEC. 202. CONSTITUTIONAL TORTS PROCEDURE.

18 Title 28 of the United States Code is amended by

19 inserting after chapter 171 the following new chapter:

20 ‘‘CHAPTER 172—CONSTITUTIONAL TORTS

21 ‘‘§ 2691. Definitions

22 ‘‘As used in this chapter and sections 1346(b)(2) and

23 2401(b)(2)—
4

•HR 3946 IH

1 ‘‘(1) the term ‘Federal agency’ includes any ex2 ecutive department, military department, independ3 ent establishment of the United States, any person

4 or entity acting as an instrumentality or agent of

5 the United States, any contractor with the United

6 States, any other establishment of the United States

7 (including the Executive Office of the President),

8 and any party acting in concert with the United

9 States;

10 ‘‘(2) the term ‘employee of the Government’ in11 cludes officers and employees in the executive branch

12 of the Federal Government, members of the military

13 or naval forces of the United States, members of the

14 National Guard while engaged in training or duty

15 under section 316, 502, 503, 504, or 505 of title 32,

16 and any person acting on behalf of or in concert

17 with a Federal agency, temporarily or permanently

18 in the service of the United States, whether with or

19 without compensation, and whose acts or omissions

20 are done with the knowledge or consent of the Unit21 ed States; and

22 ‘‘(3) the term ‘constitutional tort’ means a vio23 lation of the Constitution of the United States or

24 violation of human rights resulting from or caused

25 by the act or omission of a Federal agency or an
5

•HR 3946 IH

1 employee of the Government while acting within the

2 scope of the employee’s office, employment, or ap3 parent authority, or which results from the negligent

4 supervision of an employee of the Government.

5 ‘‘§ 2692. Administrative adjustment of claims

6 ‘‘(a) The head of each Federal agency may, in accord7 ance with regulations prescribed by the Attorney General,

8 compromise and settle any claim for money damages based

9 on a constitutional tort, except that any award, com10 promise, or settlement in excess of $25,000 shall be ef11 fected only with the prior written approval of the Attorney

12 General.

13 ‘‘(b) Any award, compromise, settlement, or deter14 mination made under this section shall be final and con15 clusive on the United States, except when procured by

16 means of fraud.

17 ‘‘(c) Payment of any award, compromise, or settle18 ment made under this section or made by the Attorney

19 General in any amount under section 2697 shall be paid

20 in a manner similar to judgments and compromises in like

21 causes. Appropriations or funds available for the payment

22 of such judgments and compromises shall be available for

23 the payment of awards, compromises, or settlements under

24 this chapter.
6

•HR 3946 IH

1 ‘‘(d) The acceptance by a claimant of any award,

2 compromise, or settlement made under this section or sec3 tion 2697 shall be final and conclusive on the claimant,

4 and shall constitute a complete release of any claim

5 against the United States and against the employee of the

6 Government whose act or omission gave rise to the claim,

7 by reason of the same subject matter.

8 ‘‘§ 2693. Liability of the United States

9 ‘‘(a) The United States shall be liable for compen10 satory damages for any constitutional tort, but shall not

11 be liable for interest prior to judgment or for punitive

12 damages except as herein provided. With respect to any

13 claim for money damages based on a constitutional tort,

14 the United States shall be liable for an amount not greater

15 than either—

16 (1) actual damages, or

17 (2) nominal damages in an amount which is the

18 greater of—

19 (A) $25,000, or

20 (B) in the case of a continuing violation,

21 $500 per day for each violation.

22 If the conduct giving rise to the constitutional tort claim

23 was undertaken willfully or recklessly, the court shall

24 award, in addition, exemplary damages as are just and
7

•HR 3946 IH

1 reasonable under the circumstances, as determined by the

2 trier of fact.

3 ‘‘(b) A class action in conformity with the require4 ments of the Federal Rules of Civil Procedure may be in5 stituted on a constitutional tort claim if it satisfies the

6 provisions of rule 23 thereof, and shall be maintained

7 where certified by the court before which the action is

8 filed.

9 ‘‘§ 2694. Disposition by Federal agency as pre10 requisite; evidence

11 ‘‘(a) An action shall not be instituted upon a claim

12 against the United States for money damages based on

13 a constitutional tort unless the claimant shall have first

14 presented the claim to the appropriate Federal agency and

15 that claim shall have been finally denied by the agency

16 in writing and sent to the claimant by certified or reg17 istered mail. The failure of an agency to make final dis18 position of a claim within 6 months after it is filed shall,

19 at the option of the claimant any time thereafter, be

20 deemed a final denial of the claim for purposes of this

21 section. This subsection shall not apply to such claims as

22 may be asserted under the Federal Rules of Civil Proce23 dure by third-party complaint, cross-claim, or counter24 claim.
8

•HR 3946 IH

1 ‘‘(b) Except as to a class action claim or if damages

2 are not fully ascertainable at the time of presentation pur3 suant to subsection (a), an action under this section shall

4 not be instituted for any sum in excess of the amount of

5 the claim presented to the Federal agency, except where

6 the increased amount is based upon newly discovered evi7 dence not reasonably discoverable at the time of present8 ing the claim to the Federal agency or upon allegation

9 and proof of intervening facts, relating to the amount of

10 the claim.

11 ‘‘§ 2695. Jury trial

12 ‘‘Any action brought pursuant to this chapter upon

13 a claim for money damages based on a constitutional tort

14 shall, at the request of any party to such action, be tried

15 by the court with a jury.

16 ‘‘§ 2696. Judgment as bar

17 ‘‘The judgment in an action under section 1346(b)(2)

18 shall constitute a complete bar to any action by the claim19 ant involved, by reason of the same constitutional violation

20 against the employee of the Government whose act or

21 omission gave rise to the claim, but shall not act as a re22 lease on any claim for violation of any other law.
9

•HR 3946 IH

1 ‘‘§ 2697. Compromise

2 ‘‘The Attorney General may arbitrate, compromise,

3 or settle any claim cognizable under section 1346(b)(2),

4 after the commencement of an action on that claim.

5 ‘‘§ 2698. Attorney fees; penalty

6 ‘‘(a) Any claimant to whom a judgment is awarded

7 under section 1346(b)(2), or to whom an award, com8 promise, or settlement is made under section 2697 or

9 2692 shall, in addition to such judgment, award, com10 promise, or settlement, be entitled to receive a reasonable

11 attorney’s fee and other litigation costs reasonably in12 curred, including attorney fees and costs attributable to

13 processing an administrative claim under section 2692.

14 The amount of such attorney’s fee may not exceed 25 per

15 cent of any judgment rendered under section 1346(b)(2)

16 or any award, compromise, or settlement made under sec17 tion 2697, except as otherwise approved by the court be18 fore whom the action is filed, or 20 per cent of any award,

19 compromise, or settlement made under section 2692.

20 ‘‘(b) Any attorney who charges, demands, receives,

21 or collects for services rendered in connection with a judg22 ment, award, compromise, or settlement described in sub23 section (a) any amount in excess of that allowed under

24 subsection (a) shall, if recovery be had, be fined not more

25 than $2,000 or imprisoned not more than one year, or

26 both.
10

•HR 3946 IH

1 ‘‘§ 2699. Exclusiveness of remedy

2 ‘‘(a) The authority of any Federal agency to sue and

3 be sued in its own name shall not be construed to author4 ize suits against such Federal agency on constitutional

5 tort claims arising under this chapter which are cognizable

6 under section 1346(b)(2), and the remedies provided by

7 this title in such case shall be exclusive.

8 ‘‘(b)(1) Upon filing a claim with the district court

9 under section 1346(b)(2), the remedy against the United

10 States provided by section 2693 for claims for money dam11 ages based on constitutional torts shall be exclusive of any

12 other Federal civil action or proceeding for money dam13 ages by reason of the same subject matter against the em14 ployee whose act or omission gave rise to the claim or

15 against the estate of such employee.

16 ‘‘(2) Paragraph (1) does not extend or apply to a civil

17 action against an employee of the Government—

18 ‘‘(A) which is brought against the employee for

19 acting outside the scope of the employee’s office or

20 employment in violation of the Constitution of the

21 United States, or

22 ‘‘(B) which is brought for a violation of a stat23 ute of the United States or a statute of any State

24 under which such action against an individual is oth25 erwise authorized.
11

•HR 3946 IH

1 ‘‘(c) The provisions of this chapter shall be limited

2 to constitutional tort claims against Federal agencies or

3 employees of the Government. Nothing in this chapter

4 shall preclude or preempt suit against any person or entity

5 on any other claim, whether based on international, Fed6 eral, State, or common law, and no provision of this chap7 ter shall act as a release, waiver, or bar to such claim.

8 ‘‘(d) Upon certification by the Attorney General pur9 suant to subsection (e), the Attorney General shall defend

10 any civil action or proceeding brought in any court against

11 any employee of the Government or against the estate of

12 such employee for money damages based on any constitu13 tional tort. The employee against whom such civil action

14 or proceeding is brought shall deliver within such time

15 after date of service or knowledge of service as determined

16 by the Attorney General, all process served upon the em17 ployee or an attested true copy thereof to the employee’s

18 immediate superior or to whomever was designated by the

19 head of the employee’s department to receive such papers

20 and such person shall promptly furnish copies of the

21 pleadings and process therein to the United States attor22 ney for the district embracing the place wherein the pro23 ceeding is brought, to the Attorney General, and to the

24 head of the employee’s employing Federal agency.
12

•HR 3946 IH

1 ‘‘(e)(1) Upon certification by the Attorney General

2 that the defendant was acting within the scope of the de3 fendant’s office or employment at the time of the incident

4 out of which the claim arose, any civil action or proceeding

5 commenced upon such claim in a United States district

6 court shall be deemed an action against the United States

7 under the provisions of this title and all references thereto,

8 and the United States shall be substituted as the party

9 defendant.

10 ‘‘(2) Upon certification by the Attorney General that

11 the defendant was acting within the scope of the defend12 ant’s office or employment at the time of the incident out

13 of which the claim arose, any civil action or proceeding

14 commenced upon such claim in a State court shall be re15 moved without bond at any time before trial by the Attor16 ney General to the district court of the United States for

17 the district and division embracing the place in which the

18 action or proceeding is pending. Such action or proceeding

19 shall be deemed to be an action or proceeding brought

20 against the United States under the provisions of this title

21 and all references thereto, and the United States shall be

22 substituted as the party defendant. This certification of

23 the Attorney General shall conclusively establish scope of

24 office or employment for purposes of removal.
13

•HR 3946 IH

1 ‘‘(3) In the event that the Attorney General has re2 fused to certify scope of office or employment under this

3 section, the employee may at any time before trial, petition

4 the court to find and certify that the employee was acting

5 within the scope of the employee’s office or employment.

6 Upon such certification by the court, such action or pro7 ceeding shall be deemed to be an action or proceeding

8 brought against the United States under the provisions

9 of this title and all references thereto, and the United

10 States shall be substituted as the party defendant. A copy

11 of the petition shall be served upon the United States in

12 accordance with the provisions of rule 4(d)(4) of the Fed13 eral Rules of Civil Procedure. In the event the petition

14 is filed in a civil action or proceeding pending in a State

15 court, the action or proceeding may be removed without

16 bond by the Attorney General to the district court of the

17 United States for the district and division embracing the

18 place in which it is pending. If, in considering the petition,

19 the district court determines that the employee was not

20 acting within the scope of the employee’s office or employ21 ment, the action or proceeding shall be remanded to the

22 State court.

23 ‘‘(4) Upon certification, any action or proceeding sub24 ject to paragraph (1), (2), or (3) shall proceed in the same

25 manner as any action against the United States filed pur-
14

•HR 3946 IH

1 suant to section 1346(b)(2) and shall be subject to the

2 limitations and exceptions applicable to those actions.

3 ‘‘(5) Whenever an action or proceeding in which the

4 United States is substituted as the party defendant under

5 this subsection is dismissed for failure to first present a

6 claim pursuant to section 2694(a), such a claim shall be

7 deemed to be timely presented under section 2401(b)(2)

8 if—

9 ‘‘(A) the claim would have been timely had it

10 been filed on the date the underlying civil action was

11 commenced, and

12 ‘‘(B) the claim is presented to the appropriate

13 Federal agency within 60 days after dismissal of the

14 civil action.

15 ‘‘(f) The Attorney General may compromise or settle

16 any claim asserted in any civil action or proceeding de17 scribed in this section in the manner provided in section

18 2697, and with the same effect.

19 ‘‘§ 2700. Administrative action concerning employee

20 ‘‘Where an action or proceeding under section

21 1346(b)(2) or 2692 on a constitutional tort results in a

22 judgment against the United States or an award, com23 promise, or settlement paid by the United States, the At24 torney General shall forward the matter to the head of

25 the Federal agency which employed the employee at the
15

•HR 3946 IH

1 time of the employee’s alleged act or omission giving rise

2 to the claim upon which the action or proceeding was

3 based, for such further administrative investigation or dis4 ciplinary action as may be appropriate. In any administra5 tive proceeding relating to such investigation or discipli6 nary action, the employee may assert as a defense the em7 ployee’s reasonable good-faith belief in the lawfulness of

8 the employee’s conduct.’’.

9 SEC. 203. STATUTE OF LIMITATION, TECHNICAL AND CON10 FORMING AMENDMENTS.

11 (a) SECTION 2401.—Section 2401(b) of title 28,

12 United States Code, concerning the statute of limitations,

13 is amended—

14 (1) by inserting ‘‘(1)’’ immediately after ‘‘(b)’’;

15 (2) by inserting ‘‘cognizable under section

16 1346(b)(1) of chapter 171’’ after ‘‘United States’’;

17 (3) by adding at the end the following: ‘‘any

18 claim arising out of unlawful human experimentation

19 within the meaning of section 2681 shall not be

20 barred if presented in writing to the appropriate

21 Federal agency within 3 years from the date of the

22 enactment of section 2681.’’; and

23 (4) by adding after paragraph (1) the following:

24 ‘‘(2) A claim for money damages based on a constitu25 tional tort against the United States cognizable under sec-
16

•HR 3946 IH

1 tion 1346(b)(2) of chapter 172 shall be forever barred un2 less it is presented in writing to the appropriate Federal

3 agency within 2 years after such claim accrues or unless

4 action is begun within 6 months after the date of mailing,

5 by certified or registered mail, of notice of final denial of

6 the claim by the agency to which it was presented, except

7 that any claim accruing prior to enactment of chapter 172

8 shall not be barred if presented in writing to the appro9 priate Federal agency within 3 years from the date of en10 actment of chapter 172.’’.

11 (b) SECTION 2402.—Section 2402 of title 28, United

12 States Code, is amended by inserting ‘‘or 1346(b)(2)’’

13 after ‘‘1346(a)(1)’’.

14 (c) SECTION 2674.—Section 2674 of title 28, United

15 States Code, is amended by inserting immediately after

16 ‘‘claims’’ the following: ‘‘to which section 1346(b)(1) of

17 this title applies’’.

18 (d) MULTIPLE SECTIONS.—Sections 2676, 2677,

19 2678, and 2679 of title 28, United States Code, are

20 amended by striking out ‘‘1346(b)’’ each place it appears

21 and inserting in lieu thereof ‘‘1346(b)(1)’’.

22 (e) SECTION 2680.—Section 2680 of title 28, United

23 States Code, is amended by striking out ‘‘1346(b)’’ and

24 inserting in lieu thereof ‘‘1346(b)(1)’’.
17

•HR 3946 IH

1 (f) SECTION 1402.—Section 1402(b) of title 28,

2 United States Code, is amended by striking out ‘‘sub3 section (b)’’ and inserting in lieu thereof ‘‘subsections

4 (b)(1) and (b)(2)’’.

5 (g) TABLE OF CHAPTERS.—The table of chapters for

6 part VI of title 28, United States Code, is amended by

7 inserting after the item relating to chapter 171 the follow8 ing new item:

‘‘172. Constitutional Torts .............................................................. 2691’’.

Æ