3

1 poration primarily acting as an instrumentality or agency of 2 the United States.

3 "(4) Any action described in paragraph (1) or (2) shall, 4 at the request of any party to the action, be tried by the court 5 with a jury.

6 "(b) A contractor against whom an action described in 7 subsection (a)(2) is brought shall promptly deliver all process 8 served upon that contractor to the Attorney General. Upon 9 certification by the Attorney General that the suit against the 10 contractor is within the provisions of subsection (a)(2) of this 11 section, an action commenced in a State court shall be re12 moved without bond at any time before trial by the Attorney 13 General to the district court of the United States for the dis14 trict and division embracing the place in which the action is 15 pending. For purposes of such removal, the certification by 16 the Attorney General under this subsection establishes con17 clusively that the action is within the provisions of subsection 18 (a)(2) of this section.

19 "(c) In any action under subsection (a), the United 20 States shall not be liable for interest prior to judgment or for 21 punitive damages.

22

"(d) The judgment in an action under subsection (a)

23 shall constitute a complete bar to any other civil action by 24 the plaintiff, by reason of the same subject matter, against

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1 the contractor whose act or omission gave rise to the claim,

2 or against any employee or agent of the contractor.

3

"(e) The Attorney General or a person designated by

4 the Attorney General may arbitrate, compromise, or settle

5 any action under subsection (a).

6

"(f)(1) No attorney may charge, demand, receive, or col7 lect for services rendered, fees in excess of 25 percent of any 8 judgment rendered, or any compromise or settlement made, 9 in an action under subection (a).

10

"(2) Any attorney who violates paragraph (1) shall, if 11 recovery be had, be fined not more than $2,000 or impris

12 oned not more than one year, or both.

13

"(g) This section applies to actions pending on October

14 19, 1984, and to actions commenced after that date.

15

"(h) For purposes of this section, the term 'contractor' 16 includes a contractor, or cost reimbursement subcontractor of 17 any tier, participating in the conduct of the United States 18 atomic weapons testing program for the Department of 19 Energy (or any of its predecessor agencies, including the 20 Manhattan Engineer District, the Atomic Energy Commis21 sion, and the Energy Research and Development Adminis22 tration). Such term also includes facilities which conduct or 23 have conducted research concerning health effects of ionizing 24 radiation in connection with the testing under contract with

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1 the Department of Energy (or any of its predecessor

2 agencies).".

3 (b) The table of sections at the beginning of chapter 171

4 of title 28, United States Code, is amended by adding at the

5 end thereof the following:

6

"2681. Certain civil actions involving the atomic weapons testing program.".

SEC. 2. Section 1346 of title 28, United States Code, is 7 amended by adding at the end thereof the following new 8 subsection:

9

"(g) The district courts shall have exclusive jurisdiction 10 of all actions under section 2681 of this title.".

Passed the House of Representatives May 13, 1986.

Attest:

BENJAMIN J. GUTHRIE,

HR 1338 RFS

Clerk.

Senator McCONNELL. Now I would like to call Richard Willard, Assistant Attorney General for the Civil Division, and Don Ofte, Principal Deputy Assistant Secretary for Defense Programs at the Department of Energy.

Gentlemen, if you would give us brief statements, we will insert the full text of your remarks in the record.

Mr. Willard.

PANEL CONSISTING OF RICHARD K. WILLARD, ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE; AND DON OFTE, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR DEFENSE PROGRAMS, DEPARTMENT OF ENERGY

Mr. WILLARD. Thank you, Mr. Chairman. And since my full statement is being submitted for the record, I would just like to emphasize four points briefly today.

First of all, I agree completely with Senator Domenici-and I think that later witnesses will testify-that if there is a complaint here about anyone doing anything wrong, it should be directed to the Federal Government and not contractors. Contractors simply facilitate the carrying out of national policy made at the very highest levels of our Government.

Our Government made a deliberate decision to develop, test and deploy nuclear weapons. This decision was made by Presidents Roosevelt and Truman at a time of grave national emergency. Our Government deliberately decided to conduct the testing in a way that could expose people to radiation. That was not a decision made by the contractors, and so if there is a complaint here about the exposure of people to radiation, it is a complaint they have against the Government.

The only reason that these veterans sued the contractors in the first place was that they could not sue the Federal Government. Because of all the jurisdictional barriers, they basically adopted a subterfuge of suing the contractors for liability where-if there were to be liability at all—it ought to be the liability of the Federal Government.

The second point I would like to make is that there are very good reasons why veterans are not allowed to sue the Government for injuries obtained in the line of duty. The well-established Feres doctrine provides that when servicemen are injured or killed in combat or in their military service, they cannot sue the Government. There is a very generous program of veterans benefits available for people who are injured in the line of duty. But as a practical matter, there would be a nightmare of litigation if every serviceman who is injured in the line of duty, or who was injured in World War II, in Korea and in Vietnam were to file a lawsuit against the Federal Government. We would have to have a doubling of the size of the Justice Department just to defend that litigation. This measure could also have a serious impact on national security.

Obviously, it is not fair that a certain group of veterans should be allowed a preferential right to litigate against the Government that is denied to thousands, even millions of other veterans who were injured in the service of their country.

In 1984, Congress did pass the Veterans Dioxin and Radiation Exposure Compensation Standards Act, which liberalizes the procedures of the Veterans' Administration to give veterans every benefit of the doubt in terms of proving injury or disability as a result of exposure to radiation. That legislative initiative, we would contend, is an appropriate response by Congress.

The third point I would like to make is that whatever compensation program you have, whether it is through litigation or through the Veterans' Administration, it still requires a showing of causation. In this case, I think many of these veterans have been cruelly misled into believing that they are suffering from the effects of radiation when in fact they are not.

At present rates, 30 percent of all living Americans are going to come down with cancer at some time in their lifetime. It is not surprising, therefore, that a large number of World War II era veterans have come down with cancer. But that does not mean their cancer was caused by radiation, because the same kind of incidence of cancer occurs among populations that are not exposed to radiation.

Studies by the Government, which are cited in my prepared testimony, have shown that approximately 99 percent of the participants in the testing program received dosages of radiation under 5 rads, which is the current occupational exposure standard and is comparable to the kind of exposure people are likely to get in a lifetime from natural sources, or medical x rays, or whatever.

The scientific evidence supports the conclusion that this kind of low level radiation exposure does not cause cancer. Obviously, high levels of radiation exposure can cause cancer, but most of the participants in the test program received very low levels of exposure which are comparable to what the population generally receives.

One might wonder, why do the plaintiffs want this legislation to be able to sue if they are not likely to be able to prove causation? Well, the fact is they want to be able to get their case before a jury because juries do wild and crazy things.

A jury in Orange County, CA, recently awarded a woman $650,000 on the theory that her breast cancer had been caused by an automobile accident. There is no scientific evidence to support that theory.

We are all aware of the recent case in Philadelphia in which a woman claimed she had lost her psychic powers as a result of an adverse reaction to a dye administered in doing a CAT scan. She sued Temple University Hospital. The judge told the jury not to give her any damages for loss of psychic powers, but the jury awarded her $988,000 anyway. That, I would contend, is the real reason behind this legislation. It is not that these claimants think they have a good case, but that they want to try it out before a jury and see if they can get the pot of gold.

That brings me to my fourth and final point. It is really surprising that legislation of this kind would be considered in light of the general concern about rising tort liability and the need for tort reform which you, Mr. Chairman, have so eloquently spoken on and have sponsored legislation to deal with.

I think it is telling that Congressman Boucher said that the purpose of his bill was to provide a day in court for the 250,000 indi

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