GOVERNMENT OBSERVATION OF SAFETY AND HEALTH STANDARDS TUESDAY, FEBRUARY 20, 1990 U.S. SENATE, SUBCOMMITTEE ON COURTS AND ADMINISTRATIVE PRACTICE, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 2:37 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Howell Heflin (chairman of the subcommittee) presiding. Also present: Senators Grassley and Thurmond. OPENING STATEMENT OF HON. HOWELL HEFLIN, A U.S. Senator HEFLIN. The hearing will come to order. I welcome everyone here today, and look forward to this hearing on Senate bill 464. The stated purpose of this bill is to promote safety and health in workplaces owned and operated or under contract with the United States. Clearly, this is a worthy and important goal, but in order to reach this goal the legislation would amend the Federal Tort Claims Act and restrict the Government's ability to use the discretionary function defense. I believe that everyone would agree that Congress should be diligent in its efforts to ensure and improve workplace safety. The problem arises, however, as to the best method to achieve this worthy result. The purpose of today's hearing is to examine the merits of this legislation in connection with its stated purpose. I am happy to chair this important hearing and look forward to hearing today's witnesses. Senator Grassley, do you have an opening statement? OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator GRASSLEY. Yes, I do. First of all, I appreciate your holding this hearing on the discretionary function exemption which has been part of the Tort Claims Act since 1946. And I welcome all the witnesses, particularly Mr. Schwartz. Perhaps while he is here, Mr. Chairman, he could persuade you on the merits of Federal product liability. I have heard him on the other side of the issue. As you know, Mr. Chairman, you and I are both members of the Federal Court Study Committee. It is an entity created by Congress to make a comprehensive review of all the Federal courts' problems. It is the first one in 200 years. There is some irony in the fact that simultaneous with our meeting here, there is a meeting going on of the Federal Court Study Committee. And obviously you and I aren't there because we have got to be here, but that study committee is meeting under the assumption that we have got to reduce the Federal courts' enormous workload burdens. And we are here at this meeting considering a bill that would have precisely the opposite effect. It would encourage long, protracted civil litigation in the Federal courts, and these courts are now so overburdened with criminal cases that civil cases aren't heard. Civil cases may become as extinct as the do-do bird has if we don't do something about this workload problem. The Senate shouldn't consider legislation in a vacuum. Therefore, let me suggest that we need a much better reason for new liability laws than simply shifting responsibility to deep pockets. After all, we have also had an opportunity to hear Mr. Schwartz eloquently make the argument against that result many times before. So before we do anything hasty here, let us also cast a careful eye toward the bill's impact on the courts' ability to deliver justice to those who need it. In this regard, we need to pay some attention to the views of those who actually represent the real tort victims here. Of course, we are going to have the opportunity to do that, and so I look forward to hearing their views, Mr. Chairman. Senator HEFLIN. I call on a gentleman now for an opening statement who is as strong a believer in States rights as I am, Senator Thurmond. OPENING STATEMENT OF HON. STROM THURMOND, A U.S. Senator THURMOND. Thank you, Mr. Chairman. Today, we are assembled to conduct a hearing on S. 464, a bill introduced by Senator Sanford which concerns compliance with occupational safety and health standards in workplaces owned and operated by the Federal Government. Additionally, S. 464 would amend the Federal Tort Claims Act to waive sovereign immunity and make the Federal Government responsible for harm caused due to alleged negligence at any workplace owned by, operated by, or under contract with the U.S. Gov ernment. The Federal Tort Claims Act waives the sovereign immunity of the United States for purposes of tort liability predicated upon wrongful acts or omissions of Federal employees. However, there are express statutory limitations on the liability to which the Federal Government may be exposed. One of the more important exceptions to liability is contained in 28 United States Code, section 2880(a), or the discretionary function exception. The purpose of the discretionary function exception is to protect the public treasury from damage suits arising out of policy decisions made by the Government. The discretionary function exception limits tort liability which stems from the carrying out of essential Government activities, such as official actions and decisions based upon economic, social, or political policy judgments. If enacted, S. 464 would severely narrow the application of the discretionary function exception. This could result in the exposure of the Federal Treasury to claims brought by those seeking to add the Government as an additional defendant. Many argue that remedies for injured plaintiffs already exist under current law. For example, the workers compensation system ensures that those injured on the job will receive compensation. In addition, private tort actions are available against negligent manufacturers and suppliers. In conclusion, the goals of S. 464 are laudable. Workplace safety should be an important concern of the Federal Government. However, the means to achieving greater workplace safety need to be examined carefully. Enactment of this legislation could lead to a substantial financial liability on the part of the Federal Government. Before any major changes to the Federal Tort Claims Act are initiated, we must be certain as to the ramifications of these changes. I look forward to the testimony of all the distinguished witnesses who will appear before us today. Thank you, Mr. Chairman. Senator HEFLIN. Thank you. [A copy of S. 464 follows:] II 101ST CONGRESS 1ST SESSION S. 464 To promote safety and health in workplaces owned, operated or under contract with the United States by clarifying the United States obligation to observe occupational safety and health standards and clarifying United States responsibility for harm caused by its negligence at any workplace owned by, operated by, or under contract with the United States. IN THE SENATE OF THE UNITED STATES FEBRUARY 28 (legislative day, JANUARY 3), 1989 Mr. SANFORD (for himself and Mr. BOND) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To promote safety and health in workplaces owned, operated or under contract with the United States by clarifying the United States' obligation to observe occupational safety and health standards and clarifying United States' responsibility for harm caused by its negligence at any workplace owned by, operated by, or under contract with the United States. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. USES OF DEFENSE. 4 (a) INAPPLICABILITY OF DF PROVISION.-The limita5 tion on liability of the United States based upon exercise or 6 performance or the failure to exercise or perform a discretion 2 1 ary function or duty as provided under section 2680(a) of title 2 28, United States Code, shall be inapplicable in any legal or 3 administrative proceeding seeking damages against the 4 United States in which the plaintiff alleges and proves that 5 the harm for which the damages are sought was caused by 6 the United States violation of occupational safety or health 7 standards or which was caused by the United States negli8 gence at any workplace owned by, operated by, or under 9 contract with the United States. |