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 pro-
vide 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 Representa-
tives of the United States of America in Congress assembled,
TITLE I—FEDERAL TORT CLAIMS
AMENDMENTS
SEC. 101. REMEDY FOR UNLAWFUL HUMAN EXPERIMEN-
TATION.
Chapter 171 of title 28, United States Code, is
amended by inserting after section 2680 the following:
‘‘§ 2681. Human Experimentation
‘‘Section 2680 shall not apply to—
‘‘(1) any claim arising out of conduct or re-
search 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, radio-
logical, or biological agent, drug, or other test article
without the informed consent of the human subject
or a legal representative of the subject.
‘‘§ 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 amend-
ed 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 dis-
trict 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
‘‘§ 2691. Definitions
‘‘As used in this chapter and sections 1346(b)(2) and
2401(b)(2)—
‘‘(1) the term ‘Federal agency’ includes any ex-
ecutive department, military department, independ-
ent 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’ in-
cludes 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 Unit-
ed States; and
‘‘(3) the term ‘constitutional tort’ means a vio-
lation 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 ap-
parent authority, or which results from the negligent
supervision of an employee of the Government.
‘‘§ 2692. Administrative adjustment of claims
‘‘(a) The head of each Federal agency may, in accord-
ance with regulations prescribed by the Attorney General,
compromise and settle any claim for money damages based
on a constitutional tort, except that any award, com-
promise, or settlement in excess of $25,000 shall be ef-
fected only with the prior written approval of the Attorney
General.
‘‘(b) Any award, compromise, settlement, or deter-
mination made under this section shall be final and con-
clusive on the United States, except when procured by
means of fraud.
‘‘(c) Payment of any award, compromise, or settle-
ment 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 sec-
tion 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.
‘‘§ 2693. Liability of the United States
‘‘(a) The United States shall be liable for compen-
satory 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
‘‘§ 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 author-
ize 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 dam-
ages based on constitutional torts shall be exclusive of any
other Federal civil action or proceeding for money dam-
ages by reason of the same subject matter against the em-
ployee 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 stat-
ute of the United States or a statute of any State
under which such action against an individual is oth-
erwise authorized.
‘‘(e)(1) Upon certification by the Attorney General
that the defendant was acting within the scope of the de-
fendant’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 defend-
ant’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 re-
moved without bond at any time before trial by the Attor-
ney 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 re-
fused 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 pro-
ceeding 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 Fed-
eral 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 employ-
ment, the action or proceeding shall be remanded to the
State court.
‘‘(4) Upon certification, any action or proceeding sub-
ject to paragraph (1), (2), or (3) shall proceed in the same
manner as any action against the United States filed pur-
suant 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 de-
scribed in this section in the manner provided in section
2697, and with the same effect.
‘‘§ 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, com-
promise, or settlement paid by the United States, the At-
torney 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 dis-
ciplinary action as may be appropriate. In any administra-
tive proceeding relating to such investigation or discipli-
nary action, the employee may assert as a defense the em-
ployee’s reasonable good-faith belief in the lawfulness of
the employee’s conduct.’’.
SEC. 203. STATUTE OF LIMITATION, TECHNICAL AND CON-
FORMING 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 constitu-
tional tort against the United States cognizable under sec-
tion 1346(b)(2) of chapter 172 shall be forever barred un-
less 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 appro-
priate Federal agency within 3 years from the date of en-
actment 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 ‘‘sub-
section (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 follow-
ing new item:
‘‘172. Constitutional Torts .............................................................. 2691’’.
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