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SEC. 2. Section 2672 of title 28, United States Code, is amended by inserting in the first paragraph the following language after the word "occurred" and before th colon : ", or where the claim sounding in tort for money damages arises under the Constitution of the United States when such employee of the Government is acting within the scope of his office or employment, or under the color thereof, such liability to be determined in accordance with applicable Federal law”.

SEC. 3. (a) Section 2674 of title 28, United States Code, is amended by

(1) [(a)) inserting in the first paragraph the following language after the word “claims" and before the comma: "based upon negligent or wrongful acts or omissions"; and

(2) [(b)] by adding as a third paragraph the following:

"The United States shall be liable, respecting the provisions of this title relating to tort claims arising under the Constitution of the United States, to the same extent as entitlement to compensation is recognized under the tort law of the place where the violation occurred, but shall not be liable for interest prior to judgment or for punitive damages : Provided, however, That for a claim arising under the Constitution of the United States, such compensation shall not be less than liquidated damages of $1,000, plus a reasonable attorney's fee and other litigation costs reasonably incurred, except that for a claim arising from the interception or disclosure of a wire or oral communication as defined in [in violation of] chapter 119 of title 18, such compensation shall not be less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000 whichever is higher, plus a reasonable attorney's fee and other litigation costs reasonably incurred : With the further proviso, however, that the United States may not assert as a defense to a suit against it alleging a Constitutional tort, the absolute or qualified immunity of the employee (except Members of Congress, judges or prosecutors or those performing such functions) or his good faith belief in the lawfulness of his conduct. [And provided further, That without any effect or limitation upon any other defenses, a good faith reliance on a court order or legislative authorization shall constitute a complete defense to any claim or suit arising under the Constitution of the United States, but, notwithstanding the existence of such defense, the United States shall, when it has determined that the officer or employee was acting within the scope of his office or employment or under color thereof, reimburse the person whose constitutional rights were violated for the actual or compensatory damages sustained.”.] and (b) by amending section 2678 of title 28, United States Code, by inserting at the beginning thereof the words Except as otherwise provided by the third paragraph of section 2674 of this title," and changing the word "No" to "no".

SEC. 4. (a) Section 2675 (a) of title 28, United States Code, is amended by inserting the following language after "employment," : "or upon a claim for money damages arising from the violation of the Constitution of the United States by any employee of the Government while acting within the scope of his office or employment or under the color thereof,”; and [-]

(b) Section 2675 (a) of title 28, United States Code, is further amended by changing the period at the end of section 2675(a) to a semicolon and adding the following language

Provided, however, that upon a claim for money damages arising from the violation of the Constitution of the United States, class actions in conformity with the requirements of the Federal Rules of Civil Procedure may be instituted provided that the claim presented to the appropriate Federal agency expressly asserts the representative nature of the claim and specifically describes the members of the cla88, the common interests of the claimant and such members, and the basis upon which the claimant believes he can fairly and adequately protect the interests of the class as their representative."

Sec. 5. Section 2679(b) of title 28, United States Code, is amended to read as follows:

“(b) The remedy against the United States provided by sections 1346(b) and 2672 of this title for claims for injury or loss of property or personal injury or death resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment or for claims arising from the violation of the Constitution of the United States by any employee of the Government while acting within the scope of his office or employment or while acting under the color thereof is exclusive of any other civil action or proceeding arising out of or relating to the same subject matter against the employee whose violation or act or omission gave rise to the claim, or against the estate of such employee.”.

SEC. 6. Section 2679(d) of title 28, United States Code, is amended to read as follows:

"(d) (1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment, or in claims arising under the Constitution of the United States that the employee was acting within the scope of his office or employment or under the color thereof, at the time of the incident out of which the suit arose any such civil action or proceeding commenced 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. After such substitution the United States shall have available all aefenses to which it would have been entitled if the action had originally been commenced against the United States under this chapter and section 1346(b).

“(d) (2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment, or in claims arising under the Constitution of the United States that the employee was acting within the scope of his office or employment or under the color thereof, at the time of the incident out of which the suit arose any such civil action or proceeding commenced in a State court shall be removed, without bond, at any time before trial, by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and be deemed an action 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. After such substitution the United States shall have available all defenses to which it would have been entitled if the action had originally been commenced against the United States under this chapter and section 1346 (b). The certification of the Attorney General shall conclusively establish scope of office or employment and in claims arising under the Constitution of the United States, acting under color of office or employment for purposes of such initial removal. Should a district court of the United States determine on a hearing on a motion to remand held before trial on the merits that the employee defendant was not acting within the scope of his office or employment, and in claims arising under the Constitution of the United States, acting within the scope of his office or employment or under color thereof, the case shall be remanded to the State court in which it was initially filed.

[“(d) (3) The provisions of this chapter and section 1346(b) shall not apply in cases where the United States has not waived its sovereign immunity under this chapter.)

"(d) (3) (74)] Where an action or proceeding under this chapter is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the action or proceeding shall be dismissed, but in that event the running of any limitation of time for commencing, or filing an application or claim in, such proceeding for compensation or other benefits shall be deemed to have been suspended during the pendency of the civil action or proceeding under this chapter.".

Sec. 7. Section 2679 of title 28, United States Code, is amended by adding a new subsection (f) as follows:

“(f) Where an action or proceeding under section 1346 (b) or 2672 arising under the Constitution of the United States results in a judgment against the United States or an award, compromise, or settlement paid by the United States, the Attorney General shall forward the matter for such further administrative investigation or disciplinary action as may be appropriate to the head of the department or agency by which the employee whose violation or act or omission gave rise to the claims was employed.”.

SEC. 8. (a) The preamble to section 2680 of title 28, United States Code, is amended to read as follows:

"Except for tort claims arising under the Constitution of the United States, the provisions of this chapter and section 1346 (b) of this title shall not apply to and the United States shall not substitute itself in—"

Section 2680 (h) of title 28, United States Code, is amended to read as follows:

“(h) Any claim arising out of libel, slander, misrepresentation, deceit, or interference with contract rights.".

Sec. 9. (a) Subsections (a) through (d) of section 4116 of title 38, United States Code, are repealed, and subsection (e) of that section is amended by deletion of the designation “(0)", by deleting the words “person to whom the immunity provisions of this section apply (as described in subsection (a) of this section)," and inserting in lieu thereof the words "employee of the Department of Medicine and Surgery”.

(b) Subsections (a) through (e) of section 224 of the Public Health Service Act, as auued vy sestion 4 oi the Act or wecember 31, 1970, and renumvered (42 U.S.C. 233 (a) through (e)), are repealed, and subsection (f) is amended by deletion of the desiguacion “(f)”.

(C) Subsections (a) through (e) of section 1091 of the Foreign Service Act of 1946, as added by section 119 of the Act of July 12, 1976 (22 U.S.C. 817 (a) through (e)) are repealed.

(d) Subsections (a) through (e) of section 1089, title 10, United States Code, are repealed. Subseccion (f) is amended by deleting the words "person described in subsection (a)” and inserting in lieu thereof the words “employee of the Armeu Forces, the Department or Defense, or the Central Intelligence Agency,”.

(e) Subsections (a) through (e) of section 307 of the National Aeronautics and Space Act or 1958, as added by section 3 of the Act of October 8, 1976 (42 U.S.C. 2458a (a) through (e)), are repealed, and subsection (f) is amended by the deletion of the designation “(f)”, by the deletion of the words “person described in subsection (a)” and by the insertion in lieu thereof of the words "employee of the National Aeronautics and Space Administration”.

Sec. 10. Section 2520, title 18, United States Code, shall not apply to civil causes of action against officers or employees of the United States while acting within the scope of their office or employment, or while acting under the color of such office or employment.

SEC. 11. This Act shall apply to all claims and suits pending on the date of enactment or filed or accruing thereafter.

SEC. 12. Title 5, United States Code, is amended by adding a new chapter 78 containing new sections 7801, 7802, 7803, 7804, 7805, and 7806 as follows:

Section 7801. Definitions For the purposes of this chapter:

(1) "Person" means any natural person subject to the Constitution of the United States;

(2) "Federal agencymeans a Federal agency, as defined in section 2671 of title 28, United States Code, which employs or employed an "employee" defined in subsection (3) of this section;

(3) "Employee", unless otherwise described, means a present "employee of the Governmentas defined in section 2671 of title 28, United States Code; and

(4) Disciplinary Action" means removal, suspension without pay, demotion, admonishment or reprimand for such cause as will promote the efficiency of the service.

Section 7802. Administrative inquiries

(a)(1) Where a claim filed by a person under section 2675 of title 28, United States Code, arising under the Constitution of the United States, results in an administrative award, compromise or settlement paid by the United States, and except as provided in section 7803, such person within 30 days of execution of the award, compromise or settlement, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(a) (2) Where a civil action brought in any court by a person under section 1346 (b) of title 28, United States Code, on a claim arising under the Constitution of the United States, results in a judgment against the United States, or a settlement or compromise executed by the United States, and except as provided in section 7803, such person within 30 days after time for appeal of the judgment has expired, or within 30 days after execution of the settlement or compromise, may submit a written request to the head of the Federal agency or his designee to initiate an administrative inquiry of the acts of the employee which gave rise to the claim, as provided by rules, regulations, and instructions issued pursuant to subsection (b) of this section.

(6) Within 60 days of the effective date of the regulations described in section 7805 of this chapter, the head of each Federal agency to which such regulations are applicable shall issue rules, regulations, and instructions for initiating and conducting an administrative inquiry requested under subsection (a) (1) or (a) (2).

(c) a person who has requested an inquiry under subsection (a) (1) or (a) (2) of this section;

(1) may submit a statement, and if a hearing is held, give testimony, pursuant to the rules, regulations, and instructions issued under subsection (b), and shall be notified of the action taken on such request or inquiry and the reasons therefore, and

(2) may, within 30 days from notification of the action of the Federal agency, appeal its action (A) to the Secretary of Defense or his designee if the employee is a uniformed member of the Armed Forces as described in section 101 (4) of title 10 of the United States Code, (B) to the Secretary of the Department in which the United States Coast Guard is operating or his designee if the employee is a member of the Coast Guard, (C) to the head of an agency or his designee with a personnel system under the Foreign Service Act of 1946, as amended (22 U.S.C. 801 et seq.), if the employee is an employee of the Foreign Service, (D) to the head of an agency or his designee with a personnel system under the Public Health Service Acts, as amended (42 U.S.C. 191 et seq.), if the employee is an employee of the Public Health Service, (E) to a reviewing entity or agency designated by the President to review the proceeding concerning an employee engaged in intelligence activities, or (F) to the Civil Service Commission in any other case. Such appeal process shall include de novo review of the acts of the employee which gave use to the request under subsection (a) (1) or (a) (2). Such review shall be conducted pursuant to regulations issued under section 7805 of this chapter, and shall include the issuance of a final decision with a statement of reasons and a recommendation of disciplinary action if any.

Section 7803. Former employees; present and former Presidential appointees

With respect to a claim against a former employee or a present or former appointee of the President, a person who has met the requirements of section 7802 (a) of this chapter shall be entitled to request an administrative inquiry based upon his claim described in subsections (a) (1) and (a) (2) of section 7802 of this chapter by (A) the Secretary of Defense if the former employee or present or former Presidential appointee is a uniformed member of the Armed Forces as described in section 101 (4) of title 10 of the United States Code, (B) the Secretary of the Department in which the United States Coast Guard is operating if the former employee or present or former Presidential appointee is a member of the Coast Guard, (C) the head of an agency with a personnel system under the Foreign Service Act of 1946, as amended (22 U.S.C. 801 et seq.), if the former cmployee or present or former Presidential appointee is an employee of the foreign service, (D) to the head of an agency or his designee with a personnel system under the Public Health Service Acts, as amended (42 U.S.C. 191 et seq.), if the former employee or present or former Presidential appointee is an employee of the Public Health Service, (E) to a reviewing entity or agency designated by the President to review the proceeding concerning a former employee or present or former Presidential appointee engaged in intelligence activities, or (F) the Civil Service Commission in any other case. Such inquiries shall result in a written report to be made public not less than 30 days after service of the report on the former employee or present or former Presidential appointee whose conduct has been the subject of the administrative inquiry.

Section 7804. Judicial review

(a) A person who has obtained a final decision as provided by subsection (c)(2) of the section 7802 of this chapter may within 30 days thereof petition for its review in a district court of the United States which may affirm the decision or may set it aside and remand for further proceedings if the decision is found to be arbitrary or capricious based upon a review of the decision, statement of reasons, and recommended disciplinary action if any, issued pursuant to subsection (a) (2) of section 7802 of this chapter. Such review shall be held in camera for matters specifically protected from disclosure by statute or executive order or if the District Court determines that in camera review is in the interests of national security.

(6) A former employee or a present or former Presidential appointee whose conduct has been the subject of an administrative inquiry under section 1803 of this chapter may within 30 days after service upon him of the report of such inquiry, petition for its review in a district court of the United States which may enjoin the public release of such report if found by the court to be arbitrary or capricious.

Section 7805. Regulations

(a) Except as otherwise provided in this chapter, the Civil Service Commission with the approval of the Attorney General, within 90 days of enactment of this

chapter, shall issue such regulations as it deems necessary and appropriate for the implementation of sections 7802–7804 of this chapter. The head of each Federal agency subject to the administrative review provisions of subsection 7802 (C) (2) (F) of this chapter shall comply with such regulations and shall issue rules, regulations and instructions not inconsistent therewith.

(b) The Secretary of Defense, within 90 days of enactment of this chapter, shall issue such regulations as he deems necessary and appropriate for the im, plementation of sections 7802–7804 of this chapter. The head of each Federal ugency which is enumerated in section 101 (4) of title 10 of the United States Code shall, with respect to such uniformed members of the Armed Forces, comply with such regulations and shall issue rules, regulations, and instructions not inconsistent therewith.

(c) The reviewing entity or agency designated by the President for reviewing the conduct of employees or officers engaged in intelligence activities, within 90 days of the enactment of this chapter, shall issue such regulations as it deems necessary and appropriate for the implementation of sections 7802–7804 of this chapter. The head of each Federal agency having employees or officers engaged in intelligence activities shall comply with such regulations and shall issue rules, regulations and instructions not inconsistent therewith.

(d) The Secretary of the Department in which the United States Coast Guard is operating, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 1802–7804 of this chapter.

(e) The head of the agency with a personnel system under the Foreign Service Act of 1946, as amended, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 7802–7804 of this chapter.

(f) The head of the agency with a personnel system under the Public Health Service Acts, so amended, within 90 days of the enactment of this chapter, shall issue such regulations as are necessary and appropriate for the implementation of sections 7802–7804 of this chapter.

Section 7806. Miscellaneous

(a) Nothing in this chapter shall affect the rights of an employce to appeal or to seek review or other means of redress of any disciplinary action taken against him which he would have under other provisions of law. However, an employee, who was the subject of a disciplinary action recommended by the Civil Service Commission pursuant to subsection 7802(C), shall not be required by any other provision of law to appeal an agency disciplinary action to the Commission prior to seeking any judicial review of that action.

(b) If an employee is not entitled under other provisions of law to seek administrative or judicial review of any disciplinary action taken against him, he may in the event a complainant seeks administrative review provided by section 7802 (c)(2) of this chapter, participate in such review and give evidence or testimony if a hearing is held, and to the extent provided by section 7804 of this chapter, petition for judicial review of a final decision if any disciplinary action recommended under subsection 7802(c)(2) of this chapter is greater than that determined by the employing Federal agency under subsection 7801(c)(1).

(c) Nothing in this chapter shall affect the availability of defenses which an employee may raise in any administrative or judicial proceeding.

(d) Nothing in this chapter shall require a Federal agency to delay its disciplining of an employee, or empower the Civil Service Commission to reduce the severity of disciplinary action imposed by an agency against an employee who would not have a right to seek the Civil Service Commission's review of such action under other provisions of law.

FEDERAL TORT CLAIMS ACT AS AMENDED BY S. 2117 1

§ 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for

1 Matter proposed to be stricken from the Tort Claims Act is enclosed in black brackets. New language proposed for the act is printed in italie. All Justice Department amendments to S. 2117 of Jan. 26 and Apr. 10 are shown.

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