Many now fear that the result of that amendment, however unintended, may be the effective denial of an adequate remedy to redress illness or injury for those exposed to radiation. The legislation before us is intended to correct this situation.

We have an excellent and distinguished group of witnesses appearing before the Committee and I look forward to carefully reviewing their testimony on this important issue.

Senator MCCONNELL. The committee is meeting today to receive testimony concerning the legal questions surrounding the issue of veterans and civilians who were exposed ionizing radiation and who may be suffering as a result of that exposure.

Of particular interest to us today will be the evolution in the manner in which the suits have been handled and respective liabilities distributed. I would like to stress at the outset that the legal issues surrounding this problem are relatively new to me and that I am not here today to make any particular judgment about the relative merits.

I am here to listen to the testimony of the distinguished witnesses and to join my colleagues in exploring the complex issues before the committee today.

I do not see my colleague, Senator Domenici, yet, but I hear that Congressman Boucher is here and I would like to call him forward at this point.

Before we take you, Congressman, Senator Murkowski has a statement which I would like to make part of the record at this point.

[The prepared statement of Senator Murkowski follows:]

PREPARED STATEMENT OF SENATOR FRANK H. MURKOWSKI

Mr. Chairman, there are few issues which evoke in individuals such strong views as the possible health effects of ionizing radiation exposure. To say that this issue is a sensitive matter is an understatement.

In the forty years since the first atomic weapons test, Congress has been deeply involved in matters relating to ionizing radiation exposure.

Numerous hearings have been held on the historical events surrounding the tests, the research concerning the possible health effects of radiation exposure, and the VA's adjudication of radiation-related benefits claims. Legislation has been enacted, and extended, to provided specific VA health-care eligibility for veterans exposed to radiation. And two years ago, Congress passed legislation to require the VA to establish a uniform claims adjudication process for radiation-related claims. Although the Congress had addressed some of the concerns of these individuals, serious questions still remain.

Today you are holding hearings on a very specific aspect of this issue the federal government's liability for the possible effects of radiation exposure from participation in the U.S. atomic weapons testing program. I commend you and the members of the Committee for holding today's hearing. As Chairman of the Committee on Veterans' Affairs, I appreciate the opportunity to speak to you about this issue as it relates to our Nation's veterans.

As you know, I have been involved for some time with issues relating to veterans who were exposed to ionizing radiation during their participation in the atomic weapons testing program. I held hearings last November to consider the VA's adjudication of radiation-related claims and the impact of section 1631 of the DOD Authorization Act of 1985 on veterans. Based upon the testimony received at the hearings, serious questions have been raised as to whether the VA's claims adjudication process should be the only mechanism available for veterans who seek redress for disabilities they believe to be related to their exposure to ionizing radiation. Though the administrative avenue is an important one and an integral part of the VA's compensation system, I believe that veterans must be afforded the fullest possible opportunity to seek redress. On May 15, I along with my colleagues Senators Simon, Warner, Cranston, DeConcini, and Denton introduced S. 2454 to repeal section 1631 as a vehicle for deliberation on this very important issue. Section 1631 effectively bars judgments on behalf of claiments in suits brought against contractors who par

ticipated in the atomic weapons testing program. S. 2454 would restore to individuals the right to seek redress in court for acts or omissions of atomic weapons contractors in carrying out the atomic weapons testing program.

Mr. Chairman, S. 2454 raises questions that must be addressed. That is why you have scheduled these hearings-and I appreciate your pursuit of this matter. Based upon the information I have received, I believe the Committee could consider several possible courses of action. First, S. 1631 could be repealed in full or in part. Second, modification could be made to the Federal Tort Claims Act. Third, changes to the "Feres doctrine" could be approved. Fourth, an entirely new and specific alternative system of compensation could be developed. And last, no course of action could be taken at all.

I do not presuppose the outcome of the Committee's deliberations on this matter. I believe S. 2454 is an appropriate vehicle for discussion of these most important issues. I would encourage the Committee to consider the legal effect of S. 2454, as well as these other options.

The country, the government, and particularly those veterans who participated in the test program would be well served if we could resolve these issues once and for all. I am hopeful that these hearings today will go a long way towards resolving the issue of meaningful access to the Judicial system by individuals exposed to ionizing radiation in connection with U.S. stomic weapons tests.

STATEMENT OF HON. RICK BOUCHER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

Mr. BOUCHER. Thank you.

Senator MCCONNELL. Congressman, we are glad to have you with us. Go right ahead.

Mr. BOUCHER. Thank you very much, Mr. Chairman. It is my privilege to appear before this committee today to testify in support of H.R. 1338, which was approved without opposition in the House of Representatives last month, and also in support of S. 2454.

Veterans and others who may have sustained injury as a consequence of their participation in the atomic weapons testing program were deprived of their day in court by a 1984 amendment to the fiscal year 1985 Defense Authorization Act. Both H.R. 1338 and S. 2454 are designed to restore that right.

The 1984 amendment substituted the United States as a defendant in cases brought against the contractors who actually performed atomic weapons tests. Now, on the surface I would suggest to the committee that that amendment has some intuitive appeal. Senator MCCONNELL. Let me interrupt you for just a second, Congressman.

Senator Domenici, why do you not join the Congressman and as soon as he finishes we will go right to you.

Go ahead.

Mr. BOUCHER. I would suggest to the committee that that amendment on the surface has some intuitive appeal because under the old contractual arrangements that existed between the Federal Government and the atomic weapons testers, the contractors were indemnified for all litigation costs, including the actual expenses of the litigation as well as any settlements or judgments that might be paid because of injuries arising out of the atomic weapons testing program. The 1984 amendment merely eliminated the little man between the injured party and the ultimately financially responsible party. But the amendment, Mr. Chairman, was flawed because as a consequence of its enactment the United States is going to avoid liability for most of the injuries that are suffered.

The military cams will be barred under the Fares doctrine which precludes veterans from sing the Federal Government for injuries sustained while they were in active jury. Civilian claims will be barred under the Federal Empicyees Compensation Act.

So the practical result of the 1984 amendment is to leave the vast majority of those who were injured because of their participation in the atomic weapons testing program with no legal remedy and with no hope of recovery.

H.R. 1338 corrects that unfortunate result by permitting injured parties to sue the United States and making avallacie to the United States only those defenses that the contractor could have used. Therefore, the claims by veterans who were injured while they were in uniform will no longer be barred by the Feres doctrine, and the Federal Empicyees Compensation Act will no longer bar the suits of Federal civilian employees.

In contrast, S. 2454 repeals the 1984 amendment, thereby allowing suits against the contractor, in essence returning the law to its pre-1985 condition.

I would suggest, Mr. Chairman, that the approach taken by the House is preferable, and I would suggest it for this reason: I think it makes a certain amount of sense to have the financially ultimately responsible party being the target of the litigation.

It seems to me that the United States, since it would in any event be involved in the defense of the case, should be the only de fendant in the case. We ought to go ahead and remove the contractors from the litigation. H.R. 1338 accomplishes that result.

But H.R. 1338 by its terms does not repeal the 1984 amendment. The committee might want to consider making the text of S. 2454 an amendment to H.R. 1338.

The issue, Mr. Chairman, is really one of simple equity. In 1984, we adopted an amendment which removed the right that previously was enjoyed by many, and that was the right to a day in court. These bills are designed to restore that right.

The bills say to America's atomic veteran that we will not forget the contributions that they made to our national defense, nor will we allow the injustice that was perpetrated in 1984 to continue.

H.R. 1338 would neither ease their burden of proof nor help them overcome other legal obstacles that they would have to surmount in making their case, but it would say that in 1984 this Congress made a mistake, a mistake that we are prepared to correct this year.

Thank you very much, Mr. Chairman. I appreciate the opportunity to be here.

[The prepared statement of Mr. Boucher follows:]

PREPARED STATEMENT OF CONGRESSMAN RICK BOUCHER

Mr. Chairman, thank you for the opportunity to appear before your Committee today to discuss H.R. 1338, which was approved by the House of Representatives on May 12 without opposition, and S. 2454.

In 1984, Congress, in its rush to adjournment, adopted an amendment to the 1985 Department of Defense Authorization Act which stripped from veterans and others who may have sustained an injury as a result of their participation in the atomic weapons testing program their right to a day in court.

The 1984 amendment effectively eliminated the middle man, that is the contractors, between the injured party and the financially liable party.

H.R. 1338 and S. 2454 are designed to restore that right.

The 1984 amendment substituted the United States as defendant in those cases in which a claim is brought against a federal contractor for injuries arising out of the atomic weapons testing program.

On the surface Mr. Chairman, this change does have some intuitive appeal.

In contracting the atomic weapons testing program, the government provided indemnification for any costs of litigation, judgments or settlements by the contractors relating to the atomic weapons testing program.

In addition, as the United States was liable for such costs, the government has already played a major role in the defense of charges brought by atomic veterans against the contractors.

Due to the applicability of the Federal Tort Claims Act, however, the United States will avoid liability for most injuries suffered.

Military claims against the United States would be barred by the Federal Tort Claims Act and the Feres Doctrine, which preclude veterans from suing the United States for injuries sustained while on active duty.

Civilian claims are barred by provisions of the Federal Employees Compensation Act.

The practical result of the 1984 amendment is to leave the vast majority of those harmed by the atomic weapons testing program with no legal remedy and no hope of recovery.

H.R. 1338, which I introduced, corrects this unfortunate effect by giving injured persons a right to sue the United States, which in turn would have only those defenses previously available to the contractor who performed the test.

It gives real teeth to the intuitively appealing, but legally flawed, provisions of the FY 85 DOD Authorization Act.

In contrast, S. 2454, introduced by Senators Murkowski, Warner, Simon, Cranston, DeConcini and Denton, repeals the 1984 amendment, thereby allowing suits against the contractors.

S. 2454 is partially subsumed in H.R. 1338 which provides that if such suits are filed against the contractors, the United States is substituted as the party defendant.

Mr. Chairman, one question which remains unresolved is whether or not H.R. 1338 repeals, by implication, the 1984 amendment.

A survey of reported case law prepared by the American Law Division of CRS suggests that this may not be the case; that in the absence of “irreconcilable" differences between H.R. 1338 and the 1984 amendment, the courts would not give their imprimatur to the "repeal by implication" argument.

I would suggest that this Committee consider adopting S. 2454 as an amendment to H.R. 1338.

Such an approach would resolve the outstanding question of "repeal by implication" and retain the public policy initiative embodied in the 1984 amendment; that is, substitution of the U.S. as the defendant in suits filed for injuries sustained in the atomic weapons testing program.

By adopting S. 2454 as an amendment to H.R. 1338, we would however, preserve the right of injured parties to a day in court; the objective of both bills. The issue before the Committee is really one of simple equity.

During the 98th Congress, we adopted a proposal which removed a right previously enjoyed by those involved in the atomic weapons testing program: the right to a day in court.

H.R. 1338 restores the right.

It says to America's atomic veterans that we will not forget your contribution and your sacrifice to our national defense, nor will we allow this injustice to continue. As amended, H.R. 1338 would neither ease their burden of proof nor address other legal obstalces which must be overcome in such litigation. It does say to the men and women who may have sustained an injury that Congress made a mistake last year, a mistake that we are going to correct.

Mr. Chairman, thank you again for the opportunity to testify today. I would be pleased to answer any questions you may have.

Thank you.

Senator MCCONNELL. Thank you, Congressman. You covered this, but I want to ask you: The bill which you introduced which subsequently passed the House would allow suits against the Federal Government under the Federal Tort Claims Act and strip away defenses normally available to the Federal Government. Congress, as

we all know, has historically enacted such legislation only under very compelling circumstances. Tell me again the rationale for your position.

Mr. BOUCHER. The rationale, Mr. Chairman, is that the contractors who conduct the atomic weapons tests historically have been indemnified by the Federal Government for any litigation costs, including not only the direct expenses of the litigation but also any settlement or judgment costs arising from that litigation.

That being the case, the contractors historically have merely been middlemen in this litigation, and it makes sense to me to remove them from the litigation altogether. Let the Federal Government be the entity that defends the suit. Let the Federal Government be the entity that ultimately has to pay both the costs of litigation and any awards either by judgment or by settlement. The contractors really have no business being involved in that particular litigation loop.

H.R. 1338 accomplishes that result. It provides a meaningful remedy by saying that the Federal Government can use only the defenses the contractor would use, and it permits the contractor to be excused from the case by directly substituting the Federal Government as the party defendant. I admit that it is an exception to the Feres doctrine. I think it is an amendment to the Federal Tort Claims Act, but one that I think under these circumstances is entirely justified.

Senator MCCONNELL. Do you fear, then, a further erosion of the Feres doctrine once you open that door?

Mr. BOUCHER. Mr. Chairman, one could never sit here and say that another amendment to the Feres doctrine to address a different pattern of circumstances would not be adopted. But I believe in being practical and I think we should judge that future case when and if it is presented, on its own merits, and I think we should judge this circumstance on its merits.

Senator MCCONNELL. If the measure you favor were to become law and the Federal Government were to face trials with the only defenses available those available to contractors, could you support legislation such as S. 2441 which I introduced on behalf of the administration, the Government Contractor Liability Reform Act, which in effect place some limitations on civil liability?

Mr. BOUCHER. Mr. Chairman, not being fully familiar with the proposal that you placed forward, I would refrain from commenting on it at this time.

Senator MCCONNELL. Well, just let me say that philosophically what we are talking about here is putting some caps on amounts that can be recovered. How do you react to that in general?

Mr. BOUCHER. Well, Mr. Chairman, as a practical matter, I think I would have to review the legislation before commenting on that. I will say, if you are looking just for a response in terms of theory, that generally I prefer leaving to the States the determination of what is an appropriate level of award in general tort matters.

With regard to the Federal Tort Claims Act, obviously we have jurisdiction to make those determinations, and I would certainly listen very attentively to any arguments you wanted to make in behalf of imposing a limit.