TO WHOM IT MAY CONCERN:
The Justice of the America is the Vietnam War
As previously explained, the claimant's Bright Quang, he was Lieutenant Police Republic of Vietnam. He was inmate of the War Power of the United States of America from April 30, 1975 to July 5, 1981{1}, but he was overseeing for until November 22, 1993. Therefore, he'd like to do use to the Constitutional Rights that's 9.11 PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF {2} or the so-called is the 9. CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983 under the United States Constitution., In this case, the claimant alleges the defendant Mr. Kissinger who deprived Lieutenant Police of Republic of Vietnam: Quang, Xuan Nguyen (Bright Quang) but also sold Bright Quang to communism. Let the enemy nationalize all real property of his rights under the First Amendment to the Constitution.
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{1} Certificate of Dismissal From Camp: Number 293 GRT; 25807806142
{2} As previously explained, the plaintiff has the burden of proving that the acts of the defendant Mr. Kissinger deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].
Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right]. In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
1. the plaintiff was engaged in a constitutionally protected activity;
2. the defendant’s actions against the plaintiff would chill a person of ordinary firmness from continuing to engage in the protected activity; and
3. The plaintiff’s protected activity was a substantial or motivating factor in the defendant’s conduct.
When Henry Alfred Kissinger was the 56th Secretary of State of the United States from 1973 to 1977, he was violated statutory which were Foreign assistance acts of 1963 : hearings before the Committee on Foreign Affairs, House of Representatives, Eighty-eighth Congress, first session, on H. R. 5490{3}, to amend further the Foreign assistance act of 1961, as amended, and for other purposes, which was H.R 7885 Public Law 88–205, 88th Congress's to be 21 U.S.C 2151 Sec. 406 and 407(4)approved Dec.16,1963.
In the meanwhile, the United States of America and Republic of Vietnam were partnerships each other, because the United States of America and Republic of Vietnam, Cambodia and Laos were signed International Treaty on December 23, 1950 to be 22 U.S.C §§ 1571– 1604{5}, in order to perform Foreign Assistance Acts of the American government for the Vietnam War . Therefore, Section 406 of title 21 U.S.C § 2151 which was supporting the financing aid for Republic of Vietnam
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{3} Senator of the United States of America who's Mansfield has had a question 3 ‒ Even so good a friend of Vietnam as Senator Mansfield recently reaffirmed his respect for you, while complaining against “authoritarian rule." How do you interpret the Senator's remarks? Answer ‒ I have already dealt with the problem of democracy underdevelopment which not only Vietnam but all the underdeveloped countries have to face, and with different ways in which these countries have sought to solve this historic problem during the last 20 years. I have said how South Vietnam, while fighting a war and carrying out a revolution, endeavors for its part to reduce this fundamental contradiction between liberty and a forced march forward (U.S. News & World Report of Feb. 18, 1963).
{4} 77 STAT. ] PUBLIC LAW 88-205-DEC. 16, 1 963
ADMINISTRATIVE APPKOPEIATIONS Authorized. SEC. 406. There are hereby authorized to be appropriated for the fiscal year ending June 30,1964, and for each fiscal year thereafter, such sums as may be necessary for the cost of administering the provisions of this Act.
FEDERAL CONTROL NOT AUTHORIZED
SEC. 407. No department, agency, officer, or employee of the United States shall, under authority of this Act, exercise any direction, supervision, or control over, or impose any requirements or conditions with
respect to, the personnel, curriculum, methods of instruction, or administration of any educational institution. Approved December 16, 1963, 11 a.m.
{5}Mutual Defense Assistance: Indochina-Agreement Between the United States of America and Cambodia, France, Laos, and Viet-nam.
The claimant Bright Quang only proves the defendants Judges Barbara Schmidt and Jackie Chahal acted negligently, accidentally or inadvertently in conducting the searched violent traffic laws of the claimant in order to accuse him. When they’d intentionally accused the innocent claimant, they were destroying all of the intellectual property of the claimant.
Therefore, he proves. See 9. CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983 {6}
Because of his whole intellectual property was destroyed by them. See 17 U.S.C. §106a {7}, known as the Visual Artists Rights Act of 1990, he has had registries the copyrights. As a result, the claimant provides: See 28 U.S. Code § 1346-{8} June 25,1948am that the American government is as defendant because they are employees Agencies of the United States of America.
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{6} Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable...
{7} (a)Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
{8}(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(1)
Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2)
Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States,..
“Holding the government liable only “under circumstances where the United States, if a private person, would be liable”
Durden v. United States, 736 F.3d 296 (4th Cir. 2013)
Yet, Section 407 of title 21 U.S.C § 2151{9}, which has given an order to all of the American leaders and all of employees Agencies that must perfectly perform to this act. Let the United States military defeat communism - after that, the America military shall return to their homeland.
The claimant exact proves: Mr. Kissinger was torn the Paris Peace Accords on January 17, 1973: See- 10} because of the mastermind of the Vietnam War of Mr. Kissinger has been declaring for two times of his war crime in oneself, he said, " Vietnam failures We did to ourselves." See {11}. The second time is of Mr. Kissinger has declared when on April 27, 2016 - ... Henry Kissinger acknowledged “mistakes were made” by America in the Vietnam War but said he had no regrets about his actions in the war . See Former secretary of state Henry Kissinger discusses his controversial{12}.
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{9} In Vietnam today we have a major U.S. military assistance program. We have a major program of supporting assistance, which aimed at two principal objectives; one, to support the Vietnam economy, while they are fighting this internal war, and secondly to contribute directly to the work that is going on there in the countryside, which is intended to give the Vietnamese farmers and villagers a stake in their own defense, and the spirit and knowledge which will enable them to participate in beating off the Communist guerrilla attacks...
{10} (Text from TIAS 7542 (24 UST 4-23){In the Paris Peace Accords that President Nixon has declared and said “ No one will leave behind this Paris Peace Accords.” and we respected for Self- determination sovereign of the South Vietnam. But no has chapter and articles shall betray to Republic of Vietnam.
{11}news/nation/.../09/.../kissinger_vietnam_failures_we_did_to_ourselves
{12} › News › Campus- Former secretary of state Henry Kissinger discusses his controversial career
The pursuant to statutory: see 18 U.S. Code § 112 {13} — June 25, 1948 that the American government should be protections for all of foreign guests. That's reason the United States of America is proudly of the protection of fundamental human rights was a foundation stone in the establishment of the United States over 200 {14}years ago which is why the United States of America has knowledge the independence of Republic of Vietnam. But which is why president Kennedy and President Ngo Dinh Diem that they were their private sovereign and national people while they are together eating an holy cake , drinking holy water and adoring together God which is why the Diplomacy in action of the United States of America which assassinated President Ngo Dinh Diem. See {15}
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{13} Diplomacy in Act of Human Rights-Coordinate human rights activities with important allies, including the EU, and original organization..
{14} (b) Whoever willfully—(1) intimidates, coerces, threatens, or harasses a foreign official or an official guest or obstructs a foreign official in the performance of his duties;
(2) attempts to intimidate, coerce, threaten, or harass a foreign official or an official guest or obstruct a foreign official in the performance of his duties; or
(3) within the United States and within one hundred feet of any building or premises in whole or in part owned, used, or occupied for official business or for diplomatic, consular, or residential purposes by—
{15} The disclosure marks the largest single release ever of Kennedy recordings and offers important new insights into the president's reaction to unraveling events in Vietnam not long before his death. On one tape recorded November 4, 1963, Kennedy dictates a memo seeming to regret the assassination of South Vietnam's President Ngo Dinh Diem, following a coup Kennedy endorsed. Only weeks before his own assassination Kennedy recorded, "I feel that we must bear a good deal of responsibility, in part beginning with our cable of early August, in which we suggested the coup, period. In my judgment that wire was badly drafted, comma, it should never have been sent on a Saturday." The dictation continues until Kennedy was interrupted by his son... extraordinary character. While he became increasingly difficult in the last months, nevertheless CNN-Kennedy White House tapes offer new insight-November 25, 1998
After Foreign Assistance Act of the America just signed, the United States Military came to the South Vietnam that it was freely operating in order to test so much of modern weapon. In fact, the coup was assassinated president Ngo Dinh Diem by the rebellious Southern Generals who were brainwashed by the Foreign Assistance Act. In the meantime, Republic of Vietnam military was hesitated by the coup, so the local governments were retreating to cut and to run out of their local governments. And therefore, the Vietnamese communist spies were secretly to agitation and propaganda for the Southern people that they got a good chance and defeated Americanism. When they were taken the streets, they were beaten the drums and whistled the trumpets, so Republic of Vietnam troops were lost spirit fighting anti - communists. And then, the Vietnamese communist guerrillas were seized the all of local governments.
On the other hand, onside, the coup has been fighting for the throne each other when it self killed few of patriotic generals because the Vietnamese communists did not defeat them, but they self killed each other.
Other side of the United State military nosily sent to the South Vietnam in order to re-seize the lost local governments. The propagandas of Vietnamese communist spies have been recruited for the army and the Southern people that they could defeat the United States military out of the Southern Vietnam.
After that, the only two years have been gone; the Northern government was strongly attacking so much of the strongholds of the Southern Vietnam military. For example, on May 30, 1965, the Northern troop attacked in Bagia post. So the help of the America cannons was shooting to the whole villages of the west Tinh Son District, those did not care to civil people or enemy, which looked like the heavily rain. As a result, the American cannons shot destroyed to the father's home of claimant when his father was died by the victim of the War Power without have had any governments, which gave any death certificate.
The happiness of his father family was bankrupted by the war. So the claimant was to be homeless, he looked like a wild dog when he was hopeless wandering on between the market's life.
The claimant provides : see 1 U.S. C § 112 {16} July 1947 that’s the United States Congress has enacted this statutory that is clearly regularity of International Agreement Treaties and foreign Assistance Acts as like the United States of America has agreed with Republic of Vietnam when the Constitutional rights could not alter any statutes of the Vietnam War.
The pursuant to: See 1 USC § 112a. {17} Sep. 23.1950, which has confirming all of Agreements Treaties of the United States of America are respected by the United States Congress and Constitutional Rights which is why the Kissinger has torn the Paris Peace Accords- since the Kissinger has barbarously betrayed the claimant without regrets.
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{16}United States Treaties and Other International Agreements; contents; admissibility in evidence-(a) The Archivist of the United States shall cause to be compiled, edited, indexed, and published, the United States Statutes at Large, which shall contain all the laws and concurrent resolutions enacted during each regular session of Congress; all proclamations by the President in the numbered series issued since the date of the adjournment of the regular session of Congress next preceding; and also any amendments to the Constitution of the United States proposed or ratified pursuant to article V thereof since that date,...
{17} United States Treaties and Other International Agreements; contents; admissibility in evidence. The Secretary of State shall cause to be compiled, edited, indexed, and published, beginning as of January 1, 1950, a compilation entitled “United States Treaties and Other International Agreements,” which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, during each calendar year.
To provide: See 50 U.S. Code § 4105 {18} - Prisoners of war which is why the government of the United States of America could not allow to the claimant that applied to receive the benefits of the prisoner of war. The pursuant to: See 50 U.S.C. § 4101 {19} - U.S. Code - Un - annotated Title 50. War and National Defense. Foreign Claims Settlement Commission of the United States. Therefore, the claimant would like to perform this statutory that is determined by the Constitutional Rights of the United States of America.
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{18}(a) “Prisoner of war” defined
As used in subsection (b) of this section, the term “prisoner of war” means any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States who was held as a prisoner of war for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.
(b) Payment of claims; rate allowed; certification of claims
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any prisoner of war for compensation for the violation by the enemy government by which he was held as a prisoner of war, or its agents, of its obligation to furnish him the quantity or quality of food to which he was entitled as a prisoner of war under the terms of the Geneva Convention of July 27, 1929. The compensation allowed to any prisoner of war under the provisions of this subsection shall be at the rate of $1 for each day he was held as a prisoner of war on which the enemy government or its agents failed to furnish him such quantity or quality of food. Any claim allowed under the provisions of this subsection shall be certified to the Secretary of the Treasury for payment out of the War Claims Fund established by section 4110 of this title.
{19}§4101. Foreign Claims Settlement Commission of the United States
(a) Employment of personnel; use of other facilities and services
The Foreign Claims Settlement Commission of the United States (hereinafter referred to as the "Commission") may, in accordance with the provisions of the civil-service laws and chapter 51 and subchapter III of chapter 53 of title 5, appoint and fix the compensation of such officers, attorneys, and employees, and may make such expenditures, as may be necessary to carry out its functions. Officers and employees of any other department or agency of the Government may, with the consent of the head of such department or agency, be assigned to assist the Commission in carrying out its functions. The Commission may, with the consent of the head of any other department or agency of the Government, utilize the facilities and services of such department or agency in carrying out the functions of the Commission.
(b) Rules and regulations; delegation of functions; time limit on filing of claims. The Commission may prescribe such rules and regulations as may be necessary to enable it to carry out its functions, and may delegate functions to any member, officer, or employee of the Commission.
To provide: see 22 U.S.C §§ 1621. March10, 1950{20} which allows the claimant petitions compensation benefits of the War Power because the America and Republic of Vietnam were partnerships each other. Pursuant to: see 22 U.S.C §1622g {21}, in which are partnerships of the United States of America and Republic of Vietnam that we are independence each other. Therefore, the American government has enacting for the statutory, which is Federal Tort Claims Act FTCA, 28 U.S.C. §§ 2671-2680 {22} and United States House of Representatives. To provide: see 28 U.S. Code § 2674{23} - Liability of United States when the California state has enacted statutory, which claims and actions
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{20}(a) The term “person” shall include an individual, partnership, corporation, or the Government of the United States.
(b) The term “United States” when used in a geographical sense shall include the United States, its Territories and insular possessions, and the Canal Zone.
(c) The term “nationals of the United States” includes (1) persons who are citizens of the United States, and (2) persons who, though not citizens of the United States, owe permanent allegiance to the United States. It does not include aliens.
{21} Nothing in this Act shall be construed to diminish the independence of the Commission in making its determinations on claims in programs that it is authorized to administer pursuant to the powers and responsibilities conferred upon the Commission by the War Claims Act of 1948, as amended [50 U.S.C. 4101 et seq.], the International Claims Settlement Act of 1949, as amended [22 U.S.C. 1621 et seq.], and Reorganization Plan Numbered 1 of 1954. The decisions of the Commission with respect to claims shall be final and conclusive on all questions of law and fact, and shall not be subject to review by the Attorney General or any other official of the United States or by any court by mandamus or otherwise.
{22} Federal Tort Claims Act This memorandum is intended to familiarize Members, Officers and employees of the House generally with the Federal Tort Claims Act (“FTCA”) and the protections it provides. This memorandum is not intended, however, to answer all questions or issues that may arise. Therefore, we encourage you to contact the Office of General Counsel (“OGC”) immediately with any additional questions on this topic. OGC can only provide assistance to Members, Officers, and employees of the House. Persons who are employed by other federal government entities should call their entity or agency for assistance.
{23}The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. - If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.
against public entities and public employees: see Gov. Code [965 - 965.6]
{24}) Because Mr. Kissinger, Judges. Barbara Schmidt, and Jackie were torts of the United States Constitution and statutory and Payment of Claims and Judgments against the State is performed by the Constitutional Rights and the statutory.
The claimant provides: 28 U.S.C § 1346(b){25} that's allowed to the claimant petitions to government. Because the Constitutional rights has allowed the claimant that provides: See 28 USC§ 2672{26}, which statutory is clearly to the case of the claimant because of if the United States of America did not enact any statutory to invade to South Vietnam, not assassinate President Ngo Dinh Diem, and not tear the Paris Peace Accords and not defame, libel and slander to the Claimant-and then, he could never claim to the America Courts which is why the Native Americans are freely investing for high - technology, freely going to any schools and venturing to Mars and Venus., but the Kissinger did not only betray to his alliance but also sell of the sovereign, real property and imprison of the claimant to the enemy . The United States of America did not compensation any pennies when trained the claimant to be made modern slavery war to where be the justice of America performing?
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{24} Notwithstanding any other provision of law, neither the state nor a judicial branch entity, or any officers or employees thereof, may be required by any court in any proceeding to pay or offset a tort liability claim, settlement, or judgment for which the state or judicial branch entity is liable, unless one of following conditions exits: ...
{25}The Federal Tort Claims Act (June 25, 1946, ch. 646, Title IV, 60 Stat. 812, "28 U.S.C. Pt.VI Ch.171" and 28 U.S.C. § 1346(b)) ("FTCA") is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Historically, citizens have not been able to sue their state—a doctrine referred to as sovereign immunity. The FTCA constitutes a limited waiver of sovereign immunity, permitting citizens to pursue some tort claims against the government.
{26} "The head of each Federal agency or his/her designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided, that any award, compromise or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his/her designee."
Once again, if the United States of America did not involve to the Vietnam War, did not assassinate to Foreign President Ngo Dinh Diem, and did not occupy Republic of Vietnam and did not tear the Paris Peace Accords and not betray its partnership, the claimant could not come to the United States of America in order to claim the injuries of the Vietnam War. Therefore, the United States of America has been enacted more statutes and statutory to occupy Republic of Vietnam and enacted statutory was: See 22 U.S. Code § 2151n {27} - Human rights and development assistance which is why the Kissinger has sold Republish of Vietnam to the enemy let's enemy torture the claimant. When the Vietnamese communist spies were tortured him by rifle AK.47 after April 30, 1975, they occupied Republic of Vietnam. If the Kissinger did not betray the South Vietnam and the United States military did not come to Vietnam, the claimant could be happy more than now, he has come to the United States of America when his human rights, human dignity, honors and the truth have been trampling down by the empower of the United States of America. So, many of injuries of the claimant shall not wash clearly in his heart, soul and spirit of young mindset. When the claimant is the same as the Native Americans, he has a dream of the happiness, literature, arts and enrichment, but his all of dreams have left into the prisoner of war. His wife and children were homeless and no schools could not study which is why they were injuries of their life?
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{27}(a) Violations barring assistance; assistance for needy people -No assistance may be provided under subchapter I of this chapter to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.(b) [1] Information to Congressional committees for realization of assistance for needy people; concurrent resolution terminating assistance In determining whether this standard is being met with regard to funds allocated under subchapter I of this chapter, the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives may require the Administrator primarily responsible for administering subchapter I of this chapter to submit in writing
After the twenty years have gone by, the United States of America has enacted a statutory: See Ben, S.484 {28} to be Public law 106–484 Bring Them Home Alive Act 2000, November 9, 2000 in order to exchange former Southern officers to receive the related diplomacy with ex - enemy who is the Vietnamese communist regime. Because the Kissinger has applied statutory: See 22 U.S.C § 7103a {29} - Creating, building, and strengthening partnerships against significant trafficking in persons, but he has overturned this act let him change to the human trafficking act. Because the Paris Peace Accords did not have any chapters and Articles which shall not leave any the Southern Officers to the enemy when both partnerships have been got along friendship each other, but the Kissinger has had changed his friendship to be his enemy.
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(28) A bill to provide for the granting of refugee status in the United States to nationals of certain foreign countries in which American Vietnam War POW/MIAs or American Korean War POW/MIAs may be present, if those nationals assist in the return to the United States of those POW/MIAs alive.
{29(a) Declaration of purpose-The purpose of this section is to promote collaboration and cooperation— (1) between the United States Government and governments listed on the annual Trafficking in Persons Report;
(2) Between foreign governments and civil society actors; and
(3) between the United States Government and private sector entities.
(b) Partnerships-The Director of the office established pursuant to section 7103(e)(1) of this title, in coordination and cooperation with other officials at the Department of State, officials at the Department of Labor, and other relevant officials of the United States Government, shall promote, build, and sustain partnerships between the United States Government and private entities, including foundations, universities, corporations, community-based organizations, and other nongovernmental organizations, to ensure that—
(1) United States citizens do not use any item, product, or material produced or extracted with the use and labor from victims of severe forms of trafficking; and
(2) such entities do not contribute to trafficking in persons involving sexual exploitation.
(c) Program to address emergency situations The Secretary of State, acting through the Director established pursuant to section 7103(e)(1) of this title, is authorized to establish a fund to assist foreign governments in meeting unexpected, urgent needs in prevention of trafficking in persons, protection of victims, and prosecution of trafficking offenders.
The claimant provides: See 22 USC 7114:{30} Efforts to end modern slavery, which is why the claimant is confirmed prisoner of war by the Constitutional rights, but he has come to his mother country of the American, he has become to be a modern slavery. In fact, on November 22, 1993 the claimant did not compensate any pennies of benefits of prisoner of war while the United States did confirm for Prisoner of war by Statutory. Since he was Lieutenant Police of Republic of Vietnam, Vietnamese poet, and sculptor, he has come to the United States of America, it did not allow him re-earn his professionalism. In fact, Country of San Mateo has sending him to Goodwill Company when he was hardly working with the mental Americans. But they were received by their salary, the claimant was only received the thirty - six dollar by per month. In his opinion that he did not violate crime to the American people and the United States of America when he was patriotic guy without crime to the Vietnamese people and Republic of Vietnam. But coming to the America, he has demeaned to becoming for the American slavery. For example, August 18, 1995, the County of San Mateo has ordered him see his doctor who confirm him work with heavily things and full-time {see Medical Report Aid to families with dependent children and County's harsh welfare rules}.
When no statutes of the United States of America punished for prisoner of war, he has thought in one's self that he'd be modern slavery war of the War control. For example, former President Bush's son said, “The South Vietnam did not fight for their freedom which is why they did not have it today."
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{30}(a) Actions by the Secretary of Defense (1) In general Not later than 90 days after December 23, 2016, the Secretary of Defense shall provide to the appropriate congressional committees a briefing on the policies and guidance of the Department of Defense with respect to the education and training on human slavery and the appropriate role of the United States Armed Forces in combating trafficking in persons that is received by personnel of the Armed Forces, including uniformed personnel and civilians engaged in partnership with foreign nations.
Because the Bush's son did not come to Republic of Vietnam, he did not know how to the Southern troop that they were fighting for anti- communism let's perform Foreign Assistance Act of the United States of America.
Obviously, whatever prisoner of war of the Southern Vietnam has come to the United States of America, they could not study at any American Universities when they could not understand about to the American literature, the American constitutional rights, and the American tradition of slaved traders because they were paid soldiers of the Kissinger already by the Vietnam War. The pursuant to: See 1 U.S.C 113{31} July 30, 1947 “Little and Brown’s” edition of laws and treaties; slip laws; Treaties and Other International Acts Series; admissibility in evidence, which was provided to the Kissinger that has walked on the Constitutional rights, he did not edit the Paris Peace Accords to the United States Congress that could enact the statutory- and therefore, the Paris Peace Accords to be unvalued of the International Treaty of the United States of America. To provide: See S2040 or H.R 3815 {32}- as a result, the Kissinger was together allied with Republic of Vietnam by Foreign Assistance Act of 1963, but he betrayed the South Vietnam.
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{31}The edition of the laws and treaties of the United States, published by Little and Brown, and the publications in slip or pamphlet form of the laws of the United States issued under the authority of the Archivist of the United States, and the Treaties and Other International Acts Series issued under the authority of the Secretary of State shall be competent evidence of the several public and private Acts of Congress, and of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and international agreements ...
{32}After the September 11, 2001 terrorist attacks, a federal commission was created to fact-find as much information as possible about the planning, funding, and carrying-out of the attacks. The final report ran more than 500 pages, but much intrigue has centered around 28 pages redacted for national security purposes. “60 Minutes” ran an investigative report this month revealing that the pages likely center around how the government of Saudi Arabia -- ostensibly a U.S. ally -- played a significant role in funding and assisting the attacks.
A controversial bill would allow U.S. courts to hold the Saudi government responsible if it is found to have played a role in funding or assisting the attacks. The Justice Against Sponsors of Terrorism Act, S. 2040 and H.R. 3815, has become a major issue in the presidential race over the past week, pitting the Democratic president on the opposite side of the two Democratic candidates, and potentially causing major divides in the U.S.-Saudi partnership.
The pursuant to: See 18 U.S.C § 2314 {33} that the Kissinger was transportation property of Republic of Vietnam to communism, in which had real property of the claimant again which is why the Kissinger has protecting a core of interests of the America, but he taken form property of the claimant and transported it to communism, he has quotes, "America has no permanent friends or enemies, only interests. Henry Kissinger:" Therefore, his inhuman ideology has held up Republic of Vietnam, sold to Communism when Republic of Vietnam was approved self sovereign of Republic of Vietnam by the United States Congress. To provide: See 18 U.S.C § 2382{34} - June 25, 1948 - Misprision of treason that the Kissinger has fallen into this statutory which is why the Kissinger has protecting super values of Freedom, democracy and Justice of the United States of America, but he has trampled down the democracy, freedom, and justice of Republic of Vietnam. so erudition of the Kissinger is limited, but his barbarous ambition is limitless. According to this modern Age is different to Stone Age when those has used the jungle laws, this age is to have constitutional rights and statutory.
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{33} The National Stolen Property Act is an Act of Congress which prohibits certain offenses relating to stolen property and forgery. The definitions related to the Act are codified at 18 U.S.C. § 2311[1] and the offense are codified at 18 U.S.C. §§ 2314–2315.[2]
In general, the Act prohibits the interstate or international transportation of the proceeds of theft and certain types of forged securities, as well as the receipt or fencing of stolen property, forged securities, or tools for forging securities.
{34} Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)
To provide: See 37 U.S. Code §§ 551,552 {35} Sept. 6, 1966 Chapter 10 - PAYMENTS TO MISSING PERSONS that statutory has approved for the payments to missing persons as like the claimant. When he was missing for the twenty years of the Vietnam War by foreign Assistance Act because the American government was hiring for the Southern officers that who fought anti- communism in order to protect core of interests of the United States of America in East-South Asia from December 23, 1950 by the international Treaty and Foreign Assistance Act 1963.
The pursuant to: See 38 U.S.C §1712 {36} that the Vietnamese American prisoner of war that should be equal each other, because of the ethical conscience of the United States of America, which was not discriminating when the Vietnam War has taken place which is why the Southern officers and soldiers that they were fighting to anti - communism in order to protect core of interests of the United States of America, but not fight for their private sovereign. Because the Southern Vietnam has defeated the Vietnamese communist troop and spies, which have retreated to the highland of the South Vietnam which is why the Kissinger has precluded the South Vietnam's win the North Vietnam
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{35) (1) The term “dependent”, with respect to a member of a uniformed service, means—
(A) his spouse;(B) his unmarried child (including an unmarried dependent stepchild or adopted child) under 21 years of age;(C) his dependent mother or father;(D) a dependent designated in official records; and(E) a person determined to be dependent by the Secretary concerned, or his designee.(2) The term “missing status” means the status of a member of a uniformed service who is officially carried or determined to be absent in a status of— (A) missing;(B) missing in action;(C)
interned in a foreign country; (a) A member of a uniformed service who is on active duty or performing inactive-duty training, and who is in a missing status, is—
{36} The Secretary may establish a program under which, upon the request of a veteran who is a former prisoner of war, the Secretary, within the limits of Department facilities, furnishes counseling to such veteran to assist such veteran in overcoming the psychological effects of the veteran's detention or internment as a prisoner of war.
If the Southern officers and troop could not fight for against communism, they could not protect the American military, so the foe of the United States military could be killed more than the 58,000.00 fallen soldiers that is why? The Kissing got thankfulness repaid animosity when the American ethic did not have this.
The pursuant to: See 50 U.S.C §§§ 4102, 4103, 4104 {37} that the Constitutional rights and the United States Statutory were approved of the Claimant case-what's why, the low courts also denied to the rights of the claimant. Since From 1969 to 1973, the United States dropped 540,000 tons of bombs on the country, killing anywhere from 150,000 to 500,000, but did not compensate any pennies , so the equality of the American government is always praising for its ethical conscience.
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{37}§4102. Jurisdiction of Commission
The Commission shall have jurisdiction to receive and adjudicate according to law claims as hereinafter provided.
(July 3, 1948, ch. 826, title I, §3, 62 Stat. 1241.)
§4103. Claims of employees of contractors
(a) Payment by Secretary of Labor of certain claims; execution of releases
The Secretary of Labor is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any person specified in section 101(a) of the Act entitled "An Act to provide benefits for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes", approved December 2, 1942, as amended [42 U.S.C. 1701(a)], or by the legal representative of any such person who may have died, for the amount by which (1) the total sum which would have been payable to such person by his employer (not including any payments for overtime), if such person's contract of employment had been in effect and he had been paid under it for the entire period during which he was entitled to receive benefits under section 101(b) of such Act [42 U.S.C. 1701(b)...
§4104 (a) “Civilian American citizen” defined
As used in subsections (b) and (f) of this section, the term “civilian American citizen” means any person who, being then a citizen of the United States, was captured by the Imperial Japanese Government on or after December 7, 1941, at Midway, Guam, Wake Island, the Philippine Islands, or any Territory or possession of the United States attacked or invaded by such government, or while in transit to or from any such place, or who went into hiding at any such place in order to avoid capture or internment by such government; except (1) a person who at any time voluntarily gave aid to, collaborated with, or in any manner served such government, or (2) a person who at the time of his capture or entrance into hiding was a regularly appointed, enrolled, enlisted, or inducted member of any military or naval force.
(b) Payment of detention benefits
When the Kissinger was happy sent the United States troop to Republic of Vietnam with the noisy drums and clew trumpets, he did not prohibited by any the America Courts which is why the claimant requested compensating for his life, which is legal of his case within Constitutional Rights when the Country of San Mateo Court has been taught him defense the United States Constitution and respect statutory without animosity, but the low courts denied to his case. To provide:
In the Court of Appeal of the State of California- First Appellate District- Division Five - Bright Quang, petitioner, The Superior Court of San Mateo County, Responder; Department of Motor Vehicles, Real Party in Interest. A 128855 - San Mateo Country No. CIV488313 ________ By the Court: *
The petitioner for writ of mandate is denied. it appears petitioner challenges an appealable order, and petitioner does not demonstrate why an appeal represents an inadequate remedy at law. Even assuming, arguendo , the propriety of writ review, the petitioner lacks a record sufficient to enable informed appellate review. (Sherwood v. Superior Court (1979) 24 Cal.3d j83-187; Sea Horse Ranch. Inc. v Superior Court (1994) 24 Cal. App. 4th 446, 452-453; Cal. Rules of Court, Rule 8.486(b)(1).) Date June 24, 2010 Jones, P.J.
* Before Jones, P.J; Neesham, J.and Bruiniers,J.
However,
For that reason, the United States of America has performed Federal Tort Claims Act {38}by the White House.
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{38}This memorandum is intended to familiarize Members, Officers and employees of the House generally with the Federal Tort Claims Act (“FTCA”) and the protections it provides. This memorandum is not intended, however, to answer all questions or issues that may arise. Therefore, we encourage you to contact the Office of General Counsel (“OGC”) immediately with any additional...
To return about to Defamed, libeled, and slandered, the claimant clearly provides: 9.12 PARTICULAR RIGHTS — FOURTH AMENDMENT—UNREASONABLE SEARCH—GENERALLY. Because of this part is of the claimant, he is now a Vietnamese American citizen, but not partnership of the Government of the United States of America as like in the past.
As previously explained, the claimant has the burden of proving that the act's 9.12 of 42 U.S.C. § 1983 {39} of the defendants are Judges of the Department of Motor Vehicles in 1377 Fell Street, 2nd Floor, San Francisco, CA 9117-2296. Phone (415)557-1170- Fax:(415)557-7376. Judge Barbara Schmidt and Judge Jackie deprived the claimant's Bright Quang of particular rights under the United States Constitution. In this case, the claimant alleges the defendants' Judges Barbara Schmidt and Jackie Chahal deprived Bright Quang rights under the Fourth Amendment to the Constitution when they violated: See 28 U.S. Code § 4101{40} and See Cal. Code 44, 45A and 46{41}; and 17 U.S.C 106 A of the claimant.
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{39}As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant[s] [name[s]] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant[s] deprived [him] [her] of [his] [her] rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [his] [her] [person] [residence] [vehicle] [other]. In order to prove the defendant[s] deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
{40} (1)Defamation.—
The term “defamation” means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.
(2)Domestic court.—
The term “domestic court” means a Federal court or a court of any State.
{41} 46. Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation...
Under the Fourth Amendment, a person has the right to be free from an unreasonable search of his Bright Quang's residence 217 5th Ave # 8 Redwood City, CA 94063 since Bright Quang did not violate traffic laws. In order to prove the defendants Judges Barbara Schmidt and Jackie deprived the claimant of this Fourth Amendment right, the claimant Bright Quang must prove the following additional elements by a logic of the evidence:
If they defamed, libeled, slandered to the claimant, they did not make injuries to his intellectual property. And then, the claimant could not prosecute them. However, they were intentionally made injuries to his biggest of intellectual property when they intentionally borrowed the hand of the American police in order to kill him because the American police may not forgive to any mental case, lack of skills and knowledge renders.
We have been seen for so much of event of the mental case, which were killed by the police. In fact, from day of 2009, they have assaulting the claimant by completely illegal.
If they are kindly Judges, they could be ordered him examine mental condition in commission of medical experts. After that, they could be decided him be mental case or not mental case. However, they were taken advantage of them empower when they did not only defame, libel, and slanders him but also destroy all of his big treasure of literature and art. When his dreams were lost by the Vietnam War, he has been rebuilt for his treasure of literature and arts, which have so much of hard times of his life when he has come to the United States of America. Since the claimant did not have any crimes, he is an innocent which is why they are Judges of Department of Motor Vehicles when they are completely illegal because they were family doctor of the claimant. Because they did not follow any family doctors, Department of Social Services and Social Security Administration- Supplemental Security Income, they have decided the claimant's mental case. So he should apply for benefit of Disability Determination Service Division, those have been tested for his mental condition.
In fact, from day of 22 March 2008 by See Vehicle Code 14103{42}, they searched some codes of illegal when they put a label of mental condition on his head. However, the claimant has sent his document to 1377 Fell Street, 2nd Floor San Francisco, CA 94117-2296, but they have seemed garbage of his document's (Medical information is confidential under section 1808.5 CVC) so his family doctor was signed by May 7, 2009, but they did not consider to his document because no mail returns to the sender. Because of their authority has sat on the Constitution Rights without the American governments may punish to them. But, they have never understood of outcomes of their interesting game, which reacted to the life of innocent guy. Next, the time of their deprived his driver license, they did not understand about to the livelihoods of the claimant that were very sufferings because the claimant did not seek any job within many years of his life. When his children were going to schools without meet them and see them off, his family was become to chaos because his family economy was bankrupted by their attractive game.
For example, the dreams of a writer and artist were all lost by their barbarous game because the artist and writer did not perform his books and pieces of artwork. When he may book airplane ticket, he could travel to perform his skills. He really worried to the Police or FBI that their noses were always fought to him
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{42} Failure to respond to a notice given under this chapter within 10 days is a waiver of the right to a hearing, and the department may take action without a hearing or may, upon request of the person whose privilege of driving is in question, or at its own option, reopen the question, take evidence, change, or set aside any order previously made, or grant a hearing.
because they may think about him be terrorist. Ironically, he has never dare related with his neighbors because they have known him to mental case.
They should call to the police, so the police should come to kill him. Next, he ever dare appeared to public when there should make dangerous to his innocent life. Because his life is as important as the Judges Barbara Schmidt and Jackie Chahal. Even though, they are Judges of Department of Motor Vehicles, but the human dignity is the same as one. He respected for his family and children when he could not relate to crime and law which is why they esteemed their own families than the family of the claimant or they were authorized oppression the unarmed man by their empowers. What did they take an oath loyalty to their Constitution? To provide: see 17 U.S.C § 106A {43} his intellectual property has registries by statutory.
1. Judges Barbara Schmidt and Jackie of applicable defendants searched the claimant's Bright Quang since he did not violate any traffic laws, but they have put the labels of vehicle code: See 14105 {44} on 1/11/2010, they did not only have suspension him but also have defame him be lack of skills and knowledge renders. On other hand, they have ordered him go to Court within 94 days in order to fill a writ of mandate in the Court in order to take out of his pocket. For them have understood about the claimant that did need driver license in working job, when the claimant must come to the Court that he must pay with high price for courtroom. if not, he becomes to jobless. Therefore, he could proved to his mental case when he has quotes, "The law of the United States of America is great
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{43} Copyrights: TX 6-404-116, TX 6-377-842, TX 8-288-591 and TX 7-780-619
{44} (a)Upon the conclusion of a hearing, the hearing officer or hearing board shall make findings and render a decision on behalf of the department and Notice of the decision shall include a shall notify the person involved. The decision shall take statement of the person's right to a review. Neither effect as stated in the notice, but not less than four nor more than 15 days after the notice is mailed.
. (b)The decision may be modified at any time after issuance to correct mistakes or clerical errors
business, but the ethical conscience of the American Justice seems nothing."
They did not understand about to Bright Quang that he was deaf of left ear by torment of Vietnamese communist police spies when he imprisoned during the South Vietnam that was overthrown by on April 30, 1975 because he was lieutenant police of Republic of Vietnam. He did not know about the hearings because he did not violate a traffic laws which is why they gave this Vehicle code to him.
Surely, they did thought that this Vietnamese Refugee to their nation's America in order to earn good dollars when he was unlearned guy. And therefore, their race discrimination must pour on his head let's him realize to super values of the American democracy, justice, freedom, and modern slavery war that's their first moral class was taught for the Vietnam War by the Vietnamese refugees.
Next, they acted intentionally to put a label of Vehicle code: see 13953 {45} that libeled him be, "the lack of knowledge and lack of skills renders you incapable of safety operation a motor vehicle." As they defamed him that should not effect and then they must add this libel. Let's the police should be killed when they are working in office that they may be interesting to hear a Vietnamese refugees fallen down by their policemen.
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{45} 13953. In the alternative to the procedure under Sections 13950, 13951, and 13952 and in the event the department determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways require such action, the department shall forthwith and without hearing suspend or revoke the privilege of the person to operate a motor vehicle or impose reasonable terms and conditions of probation which shall be relative to the safe operation of a motor vehicle. No order of suspension or revocation or the imposition of terms or conditions of probation shall become effective until 30 days after the giving of written notice thereof to the person affected, except that the department shall have authority to make any such order effective immediately upon the giving of notice when in its opinion because of the mental or physical condition of the person such immediate action is required for the safety of the driver or other persons upon the highways.
(Amended by Stats. 1969, Ch. 1045.)
As result, the claimant did not violate traffic laws which are why they have put this label on his head without regrets. In fact, the claimant has passed driver test by Department of Motor Vehicles, but their inequality of race discrimination has precluded to his rights driver.
What did they control of the justice handle when an innocent man who was pushed into a corner of wall without outlet? If the claimant was actually mental condition when he did not control the true, the good, and the beautiful in one's self that the awful events may take place to the American society after that, the FBI and Police must be prosecuted him be terrorism. Because of his family will be unable to touch to the American justice, his family shall never sought for any good attorneys because the American attorneys do not only protect for core of interests of the United States of America but also be proud of the American Justice, democracy and freedom. Yet, the smallest of shrimp has died which cannot make dirty for largest Ocean. Therefore, the claimant has understood that he has been trying to create the more books and arts let him will be leaving his ideology in the future of his offspring let them will understand about their grandfather who made modern slavery war of the United States of America during they will realize to the barbarous wars because the barbarous enemy of the mankind is invaded wars." However, this is a big treasure of literature and art was destroyed by the Judges of Department of Motor Vehicles already. Because the inequality of the American sociality is existed by Judges of Department of Motor Vehicles, the judges should keep their good jobs when the poor and weak of the American people have so much of burdening suffering unfairness.
Their Vehicle code was illegal because his family doctors have been confirmed him without mental case, but they have sat on the constitutional rights. During Social Security Administration- Supplemental Security Income- Notice of Disapproved Claims- Telephone: (888) 680-5582- November 22, 2011- Claim Number: 620689115. The Decision on Your Case and Social Services - Disability Determination Service Division. P.O. Box 997120, Sacramento, Ca95899-7120 - TDD 866-806-7286- September 15/2011- SSN *****9115 - DDS Case Number: 1249049- Contract Number: 4992256 - Health Analysis INC - 696 E San Clara St- Telephone: (800)528-4656 for a mental Exam. So therefore, those have confirmed the claimant that was not mental condition, but Judges Barbara Schmidt and Jackie Chahal were doctors when they have decided the claimant who was mental condition and lack of the knowledge. How would we somehow believe to their equality?
When they have sat on the constitutional rights, they oppressed the innocent claimant when he was unarmed man.
After few of years' suspensions, defamed, libeled, and slandered have gone by, they were not made money him by a writ for mandate by the Court; during they did not search any traffic crime of the claimant. They automatically repaid his driver license -"See Special Instruction Permit on May 10, 2012 by Judge Jack Chahal." to the claimant, but they were not washed clearly of mental condition, lack of knowledge and so much of injury, sufferings, miserable, and police's recording of innocence’s claimant.
In the meanwhile, they have taken advantage of their empower when they oppressed to a weak and poor man as like the claimant when the policemen, or FBI or Unseasoned causes should be killed which is why they may somehow answered in themselves when the family of claimant, relatives and his grandfather and grandmother might do in their barbarous case?
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See documents attachment
2.
In conducting the search, Judges Barbara Schmidt and Jackie Chahal acted intentionally; and because of Claimant's Bright Quang did not violate any traffic laws or criminal laws of the California State and the United States of America when he is an innocent guy. He always obeys Constitutional Rights, statutes, and statutory of the United States of America. When the Superior Court of the County of San Mateo has been taught him respect constitution and laws and defense an oath loyalty with the United States of America, he is good Vietnamese American citizen - as a result, the Court was given him honored certificate on June, 2010, since President Bill Clinton was awarded a honorable letter in order to support to his sculpture. In the meanwhile, the claimant's Bright Quang has been submitted three times of Driver Medical Evaluation on May 7, 2009, 2010 and March 26, 2012, but they were thrown in garbage by their empowers. Because they answered him, they did not receive anymore documents of the claimant case. To provide: See 39 U.S. Code § 201 - United States Postal Service {46}, which was delivery documents to them, if no one receives the mails which must return to sender, the claimant's Bright Quang did not get any mails returned. The pursuant to DWV a Public Service Agency on 12/10/2009, Office I.D. Number 548 that was evaluation result of driving test's number of errors by DQ without have mistakes, but they did not give him drive card, he'd obey them. When he did need the jobs in order to help for his family, he'd become nothing to do.
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{46} There is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service.
(Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 720.)
3. The search was unreasonable.
They act intentionally when they act with a conscious objective to engage in particular conduct. Therefore, the claimant must prove the defendants intended to search the claimant’s Bright Quang that they are abused of their powers in order to discriminate race human. For example, those Cal vehicle codes are unlawful because those were Cal Vehicle codes: 14103, 14105, and 13953 above, which are not enough legal for the claimant because the Superior Court of San Mateo could make money from the claimant when he did not violate any traffic laws, but it has an order him hire attorney to help for the claimant. And those, the claimant appealed to the State of California- First Appellate District - Division Five and it denied on June 24, 2010. It did not review to any reasons of the claimant which is why an innocent Claimant did not have crime, but he must seek lawyering that who could help for him. Therefore, he talks by book that distort justice is national traitor. Because of Judges Barbara Schmidt and Jackie Chahal have been abusing for their empower when they defamed, libeled, and slandered for an innocent claimant. To provide: see California Civil Jury Instructions: See CACI Nos. 3940–3949{47} that's why the California Department of Motor Vehicles an identification card information ______________________
{47} California Civil Jury Instructions (CACI)
3940. Punitive Damages - Individual Defendant—Trial Not Bifurcated
If you decide that [name of defendant]'s conduct caused [name of plaintiff] harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.
Request on: See01/09/15- DL/No B4547245 {48} - Health questionnaire expires: Non. in Redwood City has copied proved the claimant without have violates traffic laws which is why Judges Barbara Schmidt, Jackie and Courts did not only push him to a corner of the wall without outlets. Perhaps, they used jungle laws or they have sat on the Constitutional Rights and Statutory when they oppressed a honest guy that closed his eyes to listen to them.
The claimant Bright Quang only proves the defendants Judges Barbara Schmidt and Jackie Chahal acted negligently, accidentally or inadvertently in conducting the searched violent traffic laws of the claimant in order to accuse him. When they’d intentionally accused the innocent claimant, they were destroying all of the intellectual property of the claimant. Therefore, he proves. See
9. CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983
Because the whole intellectual property of him destroy: See 17 U.S.C. §106a, {49} repeal. Known as the Visual Artists Rights Act of 1990 when he has registries the copyrights. As a result, the claimant provides: See 28 U.S. Code § 1346-{50} United States as defendant - June 25, 1948. When they are Judges of Department of Motor Vehicles, their duties are belongs to United States as defendant.
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{48} see DMV recording on 01/09/2015
{49} repeal
{50}(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(1)
Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2)
Any other civil action or claim against
In case, the claimant was deaf of left ear by the torment of the enemy of Vietnamese communist spies during April 30, 1975 of Republic of Vietnam that was fallen by the Kissinger- and therefore he would like to prove: See 28 U.S.C. §1827 {51} in order to have a Vietnamese translator because the family of the claimant can not have any translators who are good of law studies. To provide: See 49 U.S.C. 1802
In conclusion, for the foregoing reasons, the claimant respectfully requests that Government Claims Program - Office Of Risk and Insurance Management gives and orders for granting the compensation benefits for suitable with the United States Constitution and Statutory because distort justice is national traitor or Justice is long lasting, but power has a short life.
Respectfully Yours
Bright Quang
I declare under penalty of perjury under laws of the state of California and of the United States of America that the information I have provided on this form and all attachments is true and correct.
Date: _____June 26, 2017__________________
___Bright Quang ID:xxx-xx-9xxx
Print Name: Bright Quang (Sign name)
____________________
{51} The Court Interpreters Act, 28 U.S.C. §1827 (link is external) provides that the Director of the Administrative Office of the United States Courts shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters, when the Director considers certification of interpreters to be merited, for the hearing impaired (whether or not also speech impaired) and persons who speak only or primarily a language other than the English language, in judicial proceedings instituted by the United States.
Citation:
{1} See attachment of the claimant and his family documents
[pic]
____________________________________________
{2}
9.11 PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF
As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].
Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right]. In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
1. the plaintiff was engaged in a constitutionally protected activity;
2. the defendant’s actions against the plaintiff would chill a person of ordinary firmness from continuing to engage in the protected activity; and
3. the plaintiff’s protected activity was a substantial or motivating factor in the defendant’s conduct.
[I instruct you that plaintiff’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]
A substantial or motivating factor is a significant factor.
Comment
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a private citizen. Use Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) when the plaintiff is a public employee. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir.2009).
Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future. Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir.1994). "Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.’ State action designed to retaliate against and chill political expression strikes at the very heart of the First Amendment." Id. (citations omitted).
Thus, in order to demonstrate a First Amendment violation, a citizen plaintiff must provide evidence showing that "by his actions [the defendant] deterred or chilled [the plaintiff’s] political speech and such deterrence was a substantial or motivating factor in [the defendant’s] conduct." Id. (quoting Mendocino Env’l Ctr. v. Mendocino Cnty,14 F.3d 457, 459-60 (9th Cir.1994). Defining "substantial or motivating factor" as a "significant factor" does not misstate the law. Ostad v. Or. Health & Scis. Univ., 327 F.3d 876, 884-85 (9th Cir.2003). A plaintiff need not prove, however,that "his speech was actually inhibited or suppressed." Mendocino Env’l Ctr. 192 F.3d at 1288; see also Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir.2016) ("A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff's First Amendment rights. To bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech. Further, to prevail on such a claim, a plaintiff need only show that the defendant ‘intended to interfere’ with the plaintiff's First Amendment rights and that it suffered some injury as a result; the plaintiff is not required to demonstrate that its speech was actually suppressed or inhibited." (citations omitted)).
In determining whether the First Amendment protects student speech in a public school, it is error to use the "public concern" standard applicable to actions brought by governmental employees. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir.2006). Instead, the proper standard to apply to student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969). Pinard, 467 F.3d at 759; see also Ariz. Students’ Ass’n, 824 F.3d at 867; O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir.2016); Corales v. Bennett, 567 F.3d 554, 562-68 (9th Cir.2009).
"A speech restriction cannot satisfy the time, place, manner test if the restriction does not contain clear standards." OSU Student Alliance v. Ray, 699 F.3d 1053, 1066 (9th Cir.2012); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) ("The absence of express standards makes it difficult to distinguish, ‘as applied,’ between a licensor’s legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech."). Off-campus student speech, under certain circumstances, may not be protected under the First Amendment when it is reasonably foreseeable that the speech could reach into, or be sufficiently tied to, the student’s school. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150-52 (9th Cir.2016).
Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decision makers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ . . . In accordance with these principles, we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim.
Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir.2016).
{3} Foreign assistance act of 1963 : hearings before the Committee on Foreign Affairs, House of Representatives, Eighty-eighth Congress, first session, on H. R. 5490, to amend further the Foreign assistance act of 1961, as amended, and for other purposes.
|Author: |United States. Congress. House. Committee on Foreign Affairs. |
|Publisher: |Washington : U. S. Govt. Print. Off., 1963. |
|Edition/Format: |[pic] Print book : National government publication : EnglishView all editions and formats |
|Database: |WorldCat |
|Summary: |Classified material has been deleted. |
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| |Economic assistance, American. |
|Subjects |Military assistance, American. |
| |United States. -- Foreign Assistance Act of 1963. |
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77 STAT. ] PUBLIC LAW 88-205-DEC. 16, 1%3 379
ADMINISTRATIVE APPKOPEIATIONS ArTHORIZED
SEC. 406. There are hereby authorized to be appropriated for the
fiscal year ending June 30,1964, and for each fiscal year thereafter, such
sums as may be necessary for the cost of administering the provisions
of this Act.
FEDERAL CONTROL NOT AUTHORIZED
SEC. 407. No department, agency, officer, or employee of the United
States shall, under authority of this Act, exercise any direction, supervision,
or control over, or impose any requirements or conditions with
respect to, the personnel, curriculum, methods of instruction, or administration
of any educational institution.
Approved December 16, 1963, 11 a.m.
Public Law 88-205
AN A C T December 16, 1963
To amend further the Foreign Assistance Act of 1961, as amended, and for -'
other purposes.
Be it enacted hy the Senate and House of Representatwes of the
United States ofATnerica in Congress assembled, That this Act may Foreign Assistbe
cited as the "Foreign Assistance Act of 1963". ^nce Act of i963.
PAET I
CHAPTER 1—POLICY
SEC. 101. Chapter 1 of part I of the Foreign Assistance Act of 1961,
as amended, is amended as follows:
(a) In the chapter heading strike out the words "SHORT TITLE AND".
(b) Section 101, which relates to short title, is repealed. Repeal.
(c) Section 102, which relates to statement of policy, is amended as 75 stat. 424.
follows: 22 u s e 215 1
(1) Insert between the fourth and fifth paragraphs the follow
ing additional paragraph:
"It is the sense of the Congress that the institution of full investment
guaranty pro-ams under title I I I of chapter 2 of this part with 75 stat. 429;
all recipient countries would be regarded as a significant measure of ^^ ^^^' 2^^-
self-help by such countries improvmg the climate for private invest- 2184.
ment both domestic and foreign.".
(2) In the last sentence of the seventh paragraph, strike out
"should emphasize long-range development assistance" and insert
in lieu thereof "shall emphasize long-range development assistance".
(3) Immediately after the tenth paragraph insert the following
new paragraph:
"It is the sense of the Congress that, in the administration of programs
of assistance under chapter 2 of this part, every possible pre- 75 stat. 426.
caution should be taken to assure that such assistance is not diverted „i,l^^*^ ^^^^
to short-term emergency purposes (such as budgetary purposes, balance-
of-payments purposes, or military purposes) or any other purpose
not essential to the long-range economic development of recipient
countries."
(4) The first sentence of the last paragraph is amended by striking
out "Finally, the" and substituting "The", and by inserting
"(including private enterprise within such countries)" immediately
after "countries".
(5) Immediately after the first sentence of the last paragraph
insert the following new sentence: "In particular, the Congress
note.
22 u s e 215 1.
22II
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ANSWERS TO SENATOR WAYNE MORSEʼS QUESTIONS OF FEBRUARY 21, 1962 ON VIET-NAM
Q. No. 1. (Unclassified) From what provisions of the Constitution or treaty or statute does President Kennedy derive the right to order United States military personnel to transport South Vietnamese troops into combat, to return the fire of North Vietnamese, to patrol the sea approaches to South Viet-Nam and to drop propaganda leaflets over areas held by the guerrillas opposing the Government of South Viet-Nam?
Answer: (Unclassified) Article II of the Constitution makes the President Commander-in-Chief of the Army and Navy of the United States, and vests in him the executive power. Article II has also been interpreted as making the President the “sole organ of the nation” in the field of foreign affairs (United States v. Curtiss-Wright, 299 U.S. 304, 318 ff. (1936)). These constitutional powers give the President authority to deploy United States military personnel abroad.
In addition to the Presidentʼs constitutional powers, the Congress has enacted Section 503 of the Foreign Assistance Act of 1961 which authorizes the President to furnish military assistance abroad, inter alia, by” … assigning or detailing members of the armed forces of the United States … to perform duties of a noncombatant nature, including those related to training or advice.”4
Furthermore, the United States and Viet-Nam are parties to the agreement for Mutual Defense Assistance in Indochina of December 23, 1950 (TIAS 2447; 3 U.S.T. 2756) which was concluded pursuant to P.L. 329, 81st Congress (63 Stat. 714, 22 U.S.C. 1571-1604). This agreement provides for the furnishing by the United States to Viet-Nam, among others, of military assistance in the form of equipment, material and services. Article IV, paragraph 2, of the agreement states that “To facilitate operations under this agreement, each Government agrees … to receive within its territory such personnel of the United States of America as may be required for the purposes of this agreement … .”
Under these provisions the United States has since 1950 provided military assistance to Viet-Nam in the form of training, equipment and logistic support. The activities mentioned in the question are an expansion of this training and logistic support role. The transportation or troops is logistic support. The sea patrols referred to are carefully limited to training operations and the exchange of intelligence with [Page 223]Vietnamese naval units. Our assistance to the Vietnamese in dropping leaflets over isolated parts of Viet-Nam has similarly been confined to training and logistic aspects of the operation.
Given the activities in which they are engaged, and the character of guerrilla warfare, in which hostilities occur sporadically at scattered points throughout the country, we had to face the possibility that United States personnel would come under hostile fire. In these circumstances, it was obvious that they would have to be able to defend themselves, and the President has accordingly authorized them to fire, if fired upon, if necessary for self-defense.
Q. No. 2. (Unclassified) Would you discuss the differences and similarities between the present use of United States forces in Viet-Nam and their use in Korea in 1950 and in Lebanon in 1958?
Answer: (Unclassified) United States military personnel are presently in Viet-Nam pursuant to a request of the Government of the Republic of Viet-Nam of December 14, 1961 (attached)5 and to an Agreement for Mutual Defense Assistance in Indochina of December 23, 1950. These personnel are engaged in activities of a noncombatant nature, primarily in training, logistic and advisory capacities, designed to assist the Government of the Republic of Viet-Nam to counter the indirect aggression directed against it from the North.
United States forces were sent into direct combat operations in South Korea to repel the aggressive armed attack launched on June 25, 1950 by North Korea against the Republic of Korea. On the same day the United Nations Security Council adopted a resolution calling upon all members to render every assistance to the United Nations in the situation. The Korean National Assembly, on June 26, appealed both to the United States and the United Nations for assistance. On June 27, 1950 the Security Council adopted a resolution recommending that members of the United Nations furnish such assistance to the Republic of Korea as might be necessary to repel the attack. The Security Council, on July 7, established a United Nations Command under the United States. In these circumstances, the President on the basis of his constitutional authority sent United States forces to Korea.
United States forces were deployed in Lebanon in 1958 pursuant to an urgent request from the Government of Lebanon which felt itself threatened by externally inspired civil strife. These troops were sent to Lebanon under the Presidentʼs constitutional authority as Commander-in-Chief. President Eisenhower stated that United States forces had been sent to Lebanon “to protect American lives and by their presence there to encourage the Lebanese Government in defense of Lebanese sovereignty and integrity.”
[Page 224]
It will be recalled that pursuant to President Eisenhowerʼs request the Congress had on March 9, 1957, passed a joint resolution to promote peace and stability in the Middle East which provided in part, “if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism:” (P.L. 85-7, 85th Congress). In sending United States troops to Lebanon, the President did not make use of this joint resolution since the Lebanon situation did not involve Communist armed aggression as contemplated by the resolution.
In the Lebanon situation, United States forces neither engaged in combat operations as in the Korean conflict nor in training or advisory functions as is the case today in Viet-Nam. Their mere presence in Lebanon had the desired effect of helping to restore order and tranquility there.
Q. No. 3. (Unclassified) Would it be appropriate under the Constitution for the President to submit to the Congress a resolution covering the situation in Viet-Nam which would be comparable to the Formosa Resolution of 19556 and the Middle East Resolution of 1957?
Answer: (Unclassified) As indicated in question 1 above the President has power under the Constitution to take the actions presently being carried on in Viet-Nam.
It is obviously desirable that the Congress understand the basis for Presidential actions of this character and fully support them. Traditionally these objectives have been achieved by consultation between officers of the Executive Branch and members and Committees of Congress having responsibility in the premises, particularly the Senate Foreign Relations Committee. In the present case the President has asked that the fullest and freest consultation with the Committee and the Congressional leadership be maintained. He has himself met with appropriate members of the Congress on several occasions to discuss the problems in Viet-Nam. The Secretary has frequently testified before this Committee on the same subject, and has discussed it informally on many occasions with the members of the Committee. The Assistant Secretary for Far Eastern Affairs with appropriate members of his staff are and have been available for the purpose of consultation.
On two occasions in the past, where it seemed possible that the President would wish to commit United States forces to combat operations, President Eisenhower decided to invite Congress to associate itself with his exercise of his constitutional functions as Commander-in-Chief, primarily in order to provide a convincing demonstration of United States unity on the issues there involved. We have not thought [Page 225]that such action has been called for to this point. However, should circumstances develop in which a formal expression of Congressional support seems desirable, the President undoubtedly would not hesitate to seek an appropriate resolution.
Q. No. 4. (Unclassified) To what extent are the actions by United States military personnel in South Viet-Nam considered to be combat actions?
Answer: (Unclassified) As the President said in his Press Conference on February 14, “We have not sent combat troops in the generally understood sense of the word.”7 The United States is assisting Vietnamese combat units with training, logistic, transportation and advisory personnel.
The nature of the activities in which United States military personnel are engaged in Viet-Nam is dictated by the very character of guerrilla war. Hostilities are not concentrated in any well-defined area; rather, fighting is likely to break out sporadically and without warning in any part of the country. The “front” is not fixed as in the classical situation; the front literally is everywhere. In these circumstances, as indicated in Question 1 above, the President has ordered our military personnel in Viet-Nam to fire back in self-defense if fired upon.
As noted above, United States military personnel in Viet-Nam are noncombatants. In the seven years since 1955 violence in Viet-Nam has claimed about 26,000 casualties. Of these, fifteen have been American personnel (four killed, ten wounded, one missing). Despite our increased activities in Viet-Nam, we would hope that these casualties can continue to be kept at a minimum.
Q. No. 5. (Unclassified) Is the action of the United States in Viet-Nam inconsistent with the agreement of July 1954 on the cessation of hostilities in Viet-Nam, having particular reference to Chapter III entitled “Ban on Introduction of Fresh Troops, Military Personnel, Arms and Munitions, Military Bases”? (End Unclassified)
Answer: (Confidential) The United States did not sign the 1954 Geneva Accords and is not a party thereto. At the time of conclusion of the Accords, Under Secretary of State Walter Bedell Smith stated that the United States “would view any renewal of the aggression in violation of the … agreements with grave concern and as seriously threatening international peace and security.” We have maintained the view expressed in General Smithʼs statement, and our present actions in Viet-Nam are fully in accord with that policy.
However, North Viet-Nam which is a party to the Accords has consistently violated the agreements by directing, assisting, supplying, and reinforcing guerrilla forces in South Viet-Nam and by illegal introduction into North Viet-Nam of military personnel and war materials.
[Page 226]
International law recognizes the principle that a material breach of a treaty by one party entitles the other at least to withhold compliance with an equivalent, corresponding or related provision until the other party is prepared to observe its obligations. Both the United States and Viet-Nam have made it clear that if North Viet-Nam would comply with the provisions of the Geneva Accords, increased United States assistance would no longer be necessary. Legally, the actions of the Government of the Republic of Viet-Nam in requesting and receiving additional assistance from the United States are fully consistent with the above principle.
Justification for the application of the principle of law outlined above gains force in the present context from the fact that actions being taken by the Government of Viet-Nam can be related to the requirements of legitimate self-defense necessitated by the breaches of the other party. (End Confidential)
Q. No. 6. (Unclassified) Section 503 of the Foreign Assistance Act of 1961 authorizes the President to assist a friendly country by providing defense articles and by assigning military personnel “to perform duties of a noncombatant nature”. To what extent are the operations of United States Forces in Viet-Nam being paid for out of appropriations made pursuant to the Foreign Assistance Act of 1961? (End Unclassified)
Answer: (Begin Confidential) As of March 1, 1962, fiscal year 1962 operations in Viet-Nam have been funded to the extent of $151.3 million from appropriations made pursuant to the Foreign Assistance Act of 1961 and $49.6 million from Department of Defense appropriations. These figures are subject to adjustment by the Assistant Secretary of Defense (Comptroller) in accordance with the following guideline issued by the Secretary of Defense:
“Under MAP financing procedures, reimbursement is made to the Military Service for materiel and/or services delivered or furnished to a recipient country against an approved and funded Military Assistance Program. On the other hand, where a Military Service has been assigned a U.S. military mission in a foreign country by the Secretary of Defense through the Joint Chiefs of Staff, all costs involved will be charged to the Military Service Appropriation.”
Salaries of all military personnel are, of course, funded from their Service appropriations and are not included in the above estimates. (End Confidential)
Q. No. 7. (Unclassified) What are the plans of this Administration, if any, to bring the South Viet-Nam issues before the United Nations?
Answer: (Confidential) The Administration has no present plans to bring the Viet-Nam situation before the United Nations Security Council or General Assembly for debate or action. However, Viet-Namʼs case has been officially brought to the attention of the United [Page 227]Nations and its members. The State Department paper on Viet-Nam entitled “A Threat to the Peace” was transmitted to the Secretary General and all members on December 8, 1961. The Government of the Republic of Viet-Namʼs own presentation of the facts has been made known to the members. The Secretary General, at the request of the Australian Delegation, circulated to all United Nations members copies of Vietnamese Notes to the International Control Commission on January 10, 1962. (End Confidential)
Q. No. 8. (Unclassified) What do we consider to be our obligation to SEATO in regard to supplying military aid and economic aid to South Viet-Nam?
Answer: (Confidential) Under Article IV (1) of the Southeast Asia Collective Defense Treaty and the Protocol to the Treaty, the United States is committed, in the event of Communist aggression by means of armed attack against the Republic of Viet-Nam, to act to meet the common danger in accordance with its constitutional processes. In the case of a threat to Viet-Nam other than armed attack, the parties to the Treaty have agreed under Article IV (2) to consult in order to agree on measures which should be taken for the common defense. Under Article IV (3) of the Treaty, no action can be taken on the territory of Viet-Nam except at the invitation or with the consent of the Government of the Republic of Viet-Nam. There has been no request by Viet-Nam for SEATO action.
There is, of course, nothing in the Treaty which prevents the United States from taking action bilaterally with the Republic of Viet-Nam outside the framework of the Treaty.
Several years before the creation of SEATO, the United States began to supply military assistance (1950-TIAS 2447) and Economic Aid (1951-TIAS 2346). A good working relationship for dealing with the fast-moving complexities of a guerrilla war has been established.
We have consulted regularly in the SEATO Council Representatives with our Treaty partners on the situation in Viet-Nam. We have informed them of our efforts there and have urged them to join in helping Viet-Nam. A majority of the members are doing so. (End Confidential)
Q. No. 9. (Unclassified) What is the Administrationʼs answer to the cumulating evidence that the Government of Viet-Nam is not an effective government, that it is a corrupt government, and that it is a government that will probably fall at some time in the absence of U.S. support? (End Unclassified)
Answer: (Begin Secret) The effectiveness of the Vietnamese Government can only be judged against its circumstances. It is a new country emerging from fifteen years of war and eighty years of colonial control. During half its six years of existence it has fought off the threat of Communist conquest. Its political policy has been to lay the [Page 228]infrastructure of democracy” through education, transportation and communication. Despite the war the number of children in Vietnamese elementary schools has grown in five years to 1,100,000, an increase of 272%, and a far better record than that of Communist North Viet-Nam. The Government of Viet-Nam has also made a proud record in expanding transportation, communication and health services. Its per capita food production and per capita gross national product are growing and are both higher than in North Viet-Nam. This is a good indication that the Government of free Viet-Nam with U.S. help has made more effective progress than has North Viet-Nam under Communist control. Statistical evidence carefully compiled from the best sources available is enclosed.8
On the other hand Government effectiveness in South Viet-Nam has been hampered by over-centralization, overlapping agencies and insufficient understanding between the governing and the governed. While this is partly due to the lack of competent administrators, it is also true that a greater number of competent administrators could have been developed if they had been given more responsibility and authority.
Another fact which has hampered the effectiveness of the Government of Viet-Nam is that President Diem does not possess the magnetic qualities needed to rally his people enthusiastically to his Governmentʼs programs.
There is evidence of corruption in the Government of Viet-Nam. There is no evidence of corruption on the part of President Diem and he has carried on an extensive and well-publicized campaign to punish corrupt officials. Several have been publicly tried and punished.
Some official corruption is endemic in Southeast Asian countries. The amount of corruption in Viet-Nam does not appear to be greater than in neighboring countries. However, it has damaged the prestige of the Government of Viet-Nam because exaggerated stories of official corruption are widely believed. We have checked these stories carefully and find no evidence for many of them. However, the Government of Viet-Nam has not done an effective job setting the record straight with its own people.
Two attempts have been made against President Diem. Both were military in origin and seem to have been motivated by the feeling that the government was not giving them the authority to press on vigorously with the anti-Communist struggle. The attempts failed. President Diem is clearly in control as the legitimate and elected head of the government. No other group has any appreciable degree of popular support. In the circumstances of war and tension existing in Viet-Nam, [Page 229]some discontent must be expected. Also the trouble lies partly with Diemʼs inability to project adequately his own many good qualities of leadership to his people. (End Secret)
Q. No. 10. (Unclassified) What actions has President Diem taken in regard to the 9 points for reform which he and Ambassador Nolting agreed to in December?9
Answer: (Unclassified) Varying progress has been made on all the points on which President Diem and Ambassador Nolting reached agreement in early December. Since their understanding intimately affects the interests of both governments and the prosecution of Viet-Namʼs defense effort, it cannot be spelled out in detail.
However, the following has clearly emerged in the intervening three months:
1.
There is a much closer and more effective working relationship between the United States Government and the Government of Viet-Nam.
2.
American military advisers have been accepted and listened to in a variety of roles.
3.
The Vietnamese National Internal Security Council (War Cabinet) has met more frequently and is playing a somewhat greater role.
4.
There has been increased freedom of debate in the National Assembly.
5.
The military command structure has been strengthened, but considerable improvement is still needed.
6.
U.S. and Vietnamese officials have embarked on joint studies of local conditions.
7.
Civic action and plans for village and hamlet defense are being made. Further coordination and better implementation are needed.
8.
Provincial Councils are being created. It is too soon to judge their usefulness.
9.
There have been increases in military salaries and benefits.
10.
A wide range of sound measures have put the economy on a sounder basis.
11.
A National Economic Council has been formed and has commenced examination of government development plans. Its activities will be slow and cautious.
12.
The effectiveness of military intelligence has been greatly increased.
13.
Flood relief and rehabilitation have been carried out with good effect.
14.
The President has increased his travels to the provinces.
15.
Public information has definitely improved.
[Page 230]
Q. No. 11. (Unclassified) Do the Attorney Generalʼs remarks10 at the Saigon Airport represent the policy of the Administration? Were they cleared by the President or the Department of State in advance?
Answer: (Unclassified) The Attorney General received intensive briefings on the situation in Viet-Nam before his departure for the Far East. He made a stop in Viet-Nam at the Saigon Airport only for purposes of refueling his aircraft. His remarks there were informal and consisted largely of answers to questions from the press. In these circumstances there was no formal clearance of his statements. However, his remarks reflect the policy of the Administration toward Viet-Nam.
Q. No. 12. (Unclassified) To what extent are our allies and other non-Communist states contributing to and supporting the combined U.S.-Vietnamese effort to preserve the independence of the Republic of Viet-Nam?
Answer: (Unclassified) Since it became independent Japan, France, Germany and Australia have made available to Viet-Nam various forms of aid whose total value is about $100 million. In addition there have been other programs involving students, teachers, technicians, commodities and equipment from these countries as well as from Canada, the United Kingdom, New Zealand, China, Malaya, India, FAO, WHO, ILO, ICAO, UNESCO and UNTAO.
The United States is, moreover, presently trying to stimulate expanded Free World aid to Viet-Nam as evidence of financial and political solidarity with Viet-Nam in its struggle.
Q. No. 13. (Unclassified) What precisely is the present attitude of the Indian Government toward the conflict in Viet-Nam? Heretofore, India has appeared to observe a strict and uncritically neutral role in its function as Chairman of the International Control Commission for Viet-Nam. I would like to know whether this continues to be the case.
Answer: (Unclassified) India, as Chairman of the International Control Commission for Viet-Nam, has, according to its lights, sought to play an impartial role dealing with the problems of Viet-Nam as they relate to the Geneva Accords of 1954. (End Unclassified)
Q. No. 14. (Unclassified) What is our intelligence estimate of the possibility that the Communist bloc will escalate the conflict in Viet-Nam above the level of subversion and guerrilla warfare? (End Unclassified)
Answer: (Secret) The Communist objective remains that of eliminating United States influence and presence from Viet-Nam and of replacing it by Communism. They have so far maintained coordination [Page 231]within the Communist bloc in their attempts to attain this objective. While the tempo of Viet Cong activity is likely to increase in Viet-Nam, there seems little prospect at present that the pattern of this activity will change quickly and drastically.
In looking further it must be remembered that Hanoi and Peking are more militantly revolutionary than Russia and consider their interests to be more directly involved in Viet-Nam than Russiaʼs.
If Viet-Namʼs efforts to defend itself are more successful, Hanoi, with military forces of 300,000 available, will be strongly tempted to increase the strength of its attacks. To Hanoi the struggle is at least as much a struggle for national reunification as an ideological struggle. It has largely committed its prestige to this struggle.
However, the following factors are likely to deter an overt escalation by North Viet-Nam in a situation where South Viet-Nam is defending itself with increasing success:
1.
Hanoi would not welcome the presence of a large number of Chinese Communist troops in North Viet-Nam. China is the traditional enemy. North Viet-Nam does not want to become another Chinese sphere of influence.
2.
North Viet-Nam fears Free World retaliation.
3.
Hanoi desires to retain some latitude of action by playing off Moscow and Peking.
4.
Moscow might increase its military aid to Hanoi, but would probably prefer to see a conference on Viet-Nam rather than a full scale war m Viet-Nam, an area which Russia probably does not consider vital to its interests.
5.
There appears to be some Communist belief, particularly in Moscow, that even if South Viet-Nam is able to resist temporarily, it will, in the long run, fall to Communism.
If Viet Cong success increases, the present guerrilla struggle will be likely to move up the scale, in the pattern of Communist wars of “national liberation”, towards open war involving increasingly large troop formations. A “liberated” area and “liberation government” would probably be established. However, the formation of a “liberation government” would not be an automatic signal for Communist military escalation.
It appears more likely that the present pattern, a long, wearing struggle, will continue. The South Vietnamese effort, with U.S. support is designed to meet this challenge. Time is not necessarily on the side of the guerrilla, as shown in Greece, the Philippines and Malaya. The Viet Cong probably must escalate their guerrilla war to open war in order to conquer the country. If they should decide to escalate to larger, open formations, it will be a particularly dangerous time for them. On the other hand continuation of present guerrilla destruction risks angering the peasant without winning the war. Since Communist propaganda carries limited conviction in Viet-Nam, where so many [Page 232]have already lived under their domination, the Viet Cong guerrillas must operate through fear and coercion as well as through propaganda and persuasion to obtain men and food. The South Vietnamese counter-guerrilla strategy seeks to save the peasant, conserve his property and deprive the Viet Cong of their needs so that they will have to take increasingly cruel measures to obtain food, arms and men. (End Secret)
Q. No. 15. (Unclassified) I find myself unclear as to the Soviet Unionʼs attitude toward and role in the Viet-Nam conflict. I would like an assessment of that question. More specifically, I would like to know whether Russian and Czech arms are being made available to the Viet Cong-if so, whether the levels of such assistance are appreciable or token.
Answer: (Begin Secret) As indicated above the Soviet Union for the present probably desires to avoid an enlargement of the struggle in Viet-Nam to the point which would increase the likelihood of a major war. If, however, South Viet-Namʼs defensive efforts become more successful, the USSR might feel constrained to redress the balance by increased aid to North Viet-Nam in order to reduce the likelihood of a large scale Chinese Communist intervention. Moscow cannot appear to oppose Communist expansion in underdeveloped areas.
While the Soviet attitude towards Viet-Nam will be largely influenced by developments in Laos, as well as by its own relations with Communist China and by developments on disarmament and in Berlin, it seems probable that at present Moscow does not want any major escalation in Viet-Nam. This attitude will not prevent the continuation of Russian and Communist bloc military aid to North Viet-Nam.
Communist bloc military aid to North Viet-Nam has been large and effective. However, the Viet Cong have sought to avoid the use of Communist manufactured arms in South Viet-Nam. (End Secret)
Q. No. 16. (Unclassified) If President Diem should depart the political scene—either as a result of a military coup such as was attempted in November 1960, or otherwise—are there elements, military or civilian, which could cope effectively with the situation, in our judgment?
Answer: (Unclassified) We believe there are. We are following this most sensitive subject very closely. (End Unclassified)
1. Source: Department of State, Central Files, 611.51K/2-2162. Secret. No drafting information appears on the source text, but a copy of a similar letter that was not sent is attached, listing Wood as the drafter with clearances by Aldrich and Vance (DOD) as well as Oakley, Chayes, Rice, Cottrell, and Sarris in the Department of State. The source text lists as attachments: (1) Questions and Answers on Vietnam; (2) Letter to [from] Senator Morse, (3) Letter from President Kennedy to President Diem; and (4) “The Economics of North and South Vietnam.” Only the first two are attached and only the first is printed. The letter from Senator Morse, February 21, submitted additional questions to Harriman, which are included in the attached Questions and Answers.↩
1. The transcript of the Executive Session at which Harriman testified on February 20, is in National Archives, RG 46, SFRC Files.↩
1. Printed from a copy that bears this typed signature.↩
1. P.L. 87-195, September 4, 1961; 75 Stat. 424. These and subsequent ellipses are in the source text.↩
1. Not attached to the source text, but presumably a reference to Kennedyʼs letter of December 14; see Foreign Relations, 1961-1963, vol. I, Document 322.↩
1. See American Foreign Policy, 1950-1955: Basic Documents, vol. II, p. 2486.↩
1. See footnote 3, Document 68.↩
1. Not attached to the source text.↩
1. The Joint Memorandum of Understanding, December 4, 1961, was transmitted to the Department in telegram 756 from Saigon, December 4. (Department of State, Central Files, 751K.00/12-461)↩
1. During his tour of Asia, Attorney General Robert Kennedy stopped in Saigon for about an hour while his plane was refueled. In response to a question from a newsman, he made a statement to the effect that the United States was in South Vietnam to win.↩
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This chapter focuses on 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
This chapter is organized to provide separate "elements" instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.3–9.4) and against local governing bodies (Instructions 9.5–9.8) because there are different legal standards establishing liability against these two types of defendants. Instructions 9.9–9.33 provide instructions to establish the deprivation of particular constitutional rights. An elements instruction should be used only in conjunction with a "particular rights" instruction appropriate to the facts of the case at hand.
[See chart in attached wordperfect document]
The chart below [See chart in attached wordperfect document] identifies the instructions for violations of particular federal rights to be used in conjunction with an elements instruction. "Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’" Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). When necessary, these instructions include right-specific mental states because § 1983 itself "contains no independent state-of-mind requirement" apart from what is necessary to state a violation of the underlying right. Daniels v. Williams, 474 U.S. 327, 328 (1986).
Person Subject to § 1983 Liability
It is well settled that a "person" subject to liability can be an individual sued in an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc)) or in an official capacity (see Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.2013)). A "person" subject to liability can also be a local governing body (see Waggy v. Spokane Cnty., Wash., 594 F.3d 707, 713 (9th Cir.2010)).
Local Governing Body Liability
A local governing body is not liable under § 1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978). But see Instruction 9.7 (addressing ratification and causation). "[A] municipality cannot be held liable under §1983 on a respondeat superior theory." Monell, 436 U.S. at 691. "The ‘official policy’ requirement ‘was intended to distinguish acts of the municipality from acts of employees of the municipality,’ and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in original). Because there are several ways to establish "Monell liability," see Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999), the Committee also includes in this chapter separate elements instructions for several bases of such liability (Instructions 9.5, 9.6, 9.7, and 9.8).
Eleventh Amendment Immunity
Despite the language of § 1983, "every person" does not have a universal scope; it does not encompass claims against a state or a state agency because the Eleventh Amendment bars such encroachments on a state’s sovereignty. Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.1997) ("States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983," quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)). Even if a plaintiff seeks only injunctive relief, a state that has not waived its Eleventh Amendment immunity cannot be sued in its own name under § 1983. Will, 491 U.S. at 64, 71, n.10. The Ninth Circuit applies a five-factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes: (1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued in its own name; (4) whether the entity has the authority to hold property in its own name; and (5) whether the entity has the corporate status of a state agency. Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 778 (9th Cir.2005) (citations omitted). The first prong of the test—whether a money judgment would be satisfied out of state funds—is the predominant factor. Id.
In contrast to a state or state agency, a state official may be sued in his or her official capacity under § 1983, but only for prospective injunctive relief. This is because "official-capacity actions for prospective relief are not treated as actions against the State." Will, 491 U.S. at 71 n.10. A state official may be sued under § 1983 in his or her individual capacity for damages. Kentucky v. Graham, 473 U.S. 159, 165 (1985); but see Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010) (holding that in order to be individually liable under § 1983, individual must personally participate in alleged rights deprivation).
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77 STAT. ] PUBLIC LAW 88-205-DEC. 16, 1%3 379
ADMINISTRATIVE APPKOPEIATIONS ArTHORIZED
SEC. 406. There are hereby authorized to be appropriated for the
fiscal year ending June 30,1964, and for each fiscal year thereafter, such
sums as may be necessary for the cost of administering the provisions
of this Act.
AN A C T December 16, 1963
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28 U.S. Code § 1346 - United States as defendant
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
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(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(1)
Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2)
Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
(b)
(1)
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
(2)
No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).
(c)
The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.
(d)
The district courts shall not have jurisdiction under this section of any civil action or claim for a pension.
(e)
The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986.
(f)
The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.
(g)
Subject to the provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under chapter 5 of such title.
(June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, § 2(a), 63 Stat. 62; May 24, 1949, ch. 139, § 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ch. 655, § 50(b), 65 Stat. 727; July 30, 1954, ch. 648, § 1, 68 Stat. 589; Pub. L. 85–508, § 12(e), July 7, 1958, 72 Stat. 348; Pub. L. 88–519, Aug. 30, 1964, 78 Stat. 699; Pub. L. 89–719, title II, § 202(a), Nov. 2, 1966, 80 Stat. 1148; Pub. L. 91–350, § 1(a), July 23, 1970, 84 Stat. 449; Pub. L. 92–562, § 1, Oct. 25, 1972, 86 Stat. 1176; Pub. L. 94–455, title XII, § 1204(c)(1), title XIII, § 1306(b)(7), Oct. 4, 1976, 90 Stat. 1697, 1719; Pub. L. 95–563, § 14(a), Nov. 1, 1978, 92 Stat. 2389; Pub. L. 97–164, title I, § 129, Apr. 2, 1982, 96 Stat. 39; Pub. L. 97–248, title IV, § 402(c)(17), Sept. 3, 1982, 96 Stat. 669; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104–134, title I, § 101[(a)] [title VIII, § 806], Apr. 26, 1996, 110 Stat. 1321, 1321–75; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub. L. 104–331, § 3(b)(1), Oct. 26, 1996, 110 Stat. 4069; Pub. L. 111–350, § 5(g)(6), Jan. 4, 2011, 124 Stat. 3848; Pub. L. 113–4, title XI, § 1101(b), Mar. 7, 2013, 127 Stat. 134.)
________________________________
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FEDERAL CONTROL NOT AUTHORIZED
SEC. 407. No department, agency, officer, or employee of the United
States shall, under authority of this Act, exercise any direction, supervision,
or control over, or impose any requirements or conditions with
respect to, the personnel, curriculum, methods of instruction, or administration
of any educational institution.
Approved December 16, 1963, 11 a.m.
Public Law 88-205
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Agreement on Ending the War and Restoring Peace in Vietnam, signed in Paris and entered into force January 17, 1973.
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(Text from TIAS 7542 (24 UST 4-23)
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AGREEMENT ON ENDING THE WAR AND RESTORING PEACE IN VIET-NAM
The Parties participating in the Paris Conference on Viet-Nam,
With a view to ending the war and restoring peace in Viet-Nam on the basis of respect for the Vietnamese people's fundamental national rights and the South Vietnamese people's right to self-determination, and to contributing to the consolidation of peace in Asia and the world,
Have agreed on the following provisions and undertake to respect and to implement them:
Chapter I
THE VIETNAMESE PEOPLE'S FUNDAMENTAL NATIONAL RIGHTS
Article 1
The United States and all other countries respect the independence, sovereignty, unity, and territorial integrity of Viet-Nam as recognized by the 1954 Geneva Agreements on Viet-Nam.
Chapter II
CESSATION OF HOSTILITIES - WITHDRAWAL OF TROOPS,
Article 2
A cease-fire shall be observed throughout South Viet-Nam as of 2400 hours G.M.T. [Greenwich Mean Time], on January 27, 1973.
At the same hour, the United States will stop all its military activities against the territory of the Democratic Republic of Viet-Nam by ground, air and naval forces, wherever they may be based, and end the mining of the territorial waters, ports, harbors, and waterways of the Democratic Republic of Viet-Nam. The United States will remove, permanently deactivate or destroy all the mines in the territorial waters, ports, harbors, and waterways of North Viet-Nam as soon as this Agreement goes into effect.
The complete cessation of hostilities mentioned in this Article shall be durable and without limit of time.
Article 3
The parties undertake to maintain the cease-fire and to ensure a lasting and stable peace.
As soon as the cease-fire goes into effect: (a) The United States forces and those of the other foreign countries allied with the United States and the Republic of Viet-Nam shall remain in-place pending the implementation of the plan of troop withdrawal. The Four-Party Joint Military Commission described in Article 16 shall determine the modalities.
(b) The armed forces of the two South Vietnamese parties shall remain in-place. The Two-Party Joint Military Commission described in Article 17 shall determine the areas controlled by each party and the modalities of stationing.
(c) The regular forces of all services and arms and the irregular forces of the parties in South Viet-Nam shall stop all offensive activities against each other and shall strictly abide by the following stipulations:
- All acts of force on the ground, in the air, and on the sea shall be prohibited;
- All hostile acts, terrorism and reprisals by both sides will be banned.
Article 4
The United States will not continue its military involvement or intervene in the internal affairs of South Viet-Nam.
Article 5
Within sixty days of the signing of this Agreement, there will be a total withdrawal from South Viet-Nam of troops, military advisers, and military personnel, including technical military personnel and military personnel associated with the pacification program, armaments, munitions, and war material of the United States and those of the other foreign countries mentioned in Article 3 (a). Advisers from the above-mentioned countries to all paramilitary organizations and the police force will also be withdrawn within the same period of time.
Article 6
The dismantlement of all military bases in South Viet-Nam of the United States and of the other foreign countries mentioned in Article 3 (a) shall be completed within sixty days of the signing of this agreement.
Article 7
From the enforcement of the cease-fire to the formation of the government provided for in Article 9 (b) and 14 of this Agreement, the two South Vietnamese parties shall not accept the introduction of troops, military advisers, and military personnel including technical military personnel, armaments, munitions, and war material into South Viet-Nam.
The two South Vietnamese parties shall be permitted to make periodic replacement of armaments, munitions and war material which have been destroyed, damaged, worn out or used up after the cease-fire, on the basis of piece-for-piece, of the same characteristics and properties, under the supervision of the
Joint Military Commission of the two South Vietnamese parties and of the International Commission of Control and Supervision.
THE RETURN OF CAPTURED MILITARY PERSONNEL AND FOREIGN CIVILIANS AND CAPTURED AND DETAINED VIETNAMESE CIVILIAN PERSONNEL
Article 8
(a) The return of captured military personnel and foreign civilians of the parties shall be carried out simultaneously with and completed not later than the same day as the troop withdrawal mentioned in Article 5. The parties shall exchange complete lists of the above-mentioned captured military personnel and foreign civilians on the day of the signing of this Agreement.
(b) The parties shall help each other to get information about those military personnel and foreign civilians of the parties missing in action, to determine the location and take care of the graves of the dead so as to facilitate the exhumation and repatriation of the remains, and to take any such other measures
as may be required to get information about those still considered missing in action.
(c) The question of the return of Vietnamese civilian personnel captured and detained in South Viet-Nam will be resolved by the two South Vietnamese parties on the basis of the principles of Article 21 (b) of the Agreement on the Cessation of Hostilities in Viet-Nam of July 20, 1954. The two South Vietnamese parties will do so in a spirit of national reconciliation and concord, with a view to ending hatred and enmity, in order to ease suffering and to reunite families. The two South Vietnamese parties will do their utmost to resolve this question within ninety days after the cease-fire comes into effect.
Chapter IV
THE EXERCISE OF THE SOUTH VIETNAMESE PEOPLE'S RIGHT TO SELF-DETERMINATION
Article 9
The Government of the United States of America and the Government of the Democratic Republic of Viet-Nam undertake to respect the following principles for the exercise of the South Vietnamese people's right to self-determination:
(a) The South Vietnamese people's right to self-determination is sacred, inalienable, and shall be respected by all countries.
(b) The South Vietnamese people shall decide themselves the political future of South Viet-Nam through genuinely free and democratic general elections under international supervision.
(c) Foreign countries shall not impose any political tendency or personality on the South Vietnamese people.
Article 10
The two South Vietnamese parties undertake to respect the cease-fire and maintain peace in South Viet-Nam, settle all matters of contention through negotiations, and avoid all armed conflict.
Article 11
Immediately after the cease-fire, the two South Vietnamese parties will:
- achieve national reconciliation and concord, end hatred and enmity, prohibit all acts of reprisal and discrimination against individuals or organizations that have collaborated with one side or the other;
- ensure the democratic liberties of the people: personal freedom, freedom of speech, freedom of the press, freedom of meeting, freedom of organization, freedom of political activities, freedom of belief, freedom of movement, freedom of residence, freedom of work, right to property ownership, and
right to free enterprise.
Article l2
(a) Immediately after the cease-fire, the two South Vietnamese parties shall hold consultations in a spirit of national reconciliation and concord, mutual respect, and mutual non-elimination to set up a National Council of National Reconciliation and Concord of three equal segments. The Council shall operate on the principle of unanimity, After the National Council of National Reconciliation and Concord has assumed its functions, the two South Vietnamese parties will consult about the formation of councils at lower levels. The two South Vietnamese parties shall sign an agreement on the internal matters of South Viet-Nam as soon as possible and do their utmost to accomplish this within ninety days after the cease-fire comes into effect, in keeping with the South Vietnamese
people's aspirations for peace, independence and democracy.
(b) The National Council of National Reconciliation and Concord shall have the task of promoting the two South Vietnamese parties' implementation of this Agreement, achievement of national reconciliation and concord and ensurance of democratic liberties. The National Council of National Reconciliation and
Concord will organize the free and democratic general elections provided for in Article 9 (b) and decide the procedures and modalities of these general elections. The institutions for which the general elections are to be held will be agreed upon through consultations between the two South Vietnamese parties.
The National Council of National Reconciliation and Concord will also decide the procedures and modalities of such local elections as the two South Vietnamese parties agree upon.
Article 13
The question of Vietnamese armed forces in South Viet-Nam shall be settled by the two South Vietnamese parties in a spirit of national reconciliation and concord, equality and mutual respect, without foreign interference, in accordance with the postwar situation. Among the questions to be discussed by the
two South Vietnamese parties are steps to reduce their military effectives and to demobilize the troops being reduced. The two South Vietnamese parties will accomplish this as soon as possible.
Article 14
South Viet-Nam will pursue a foreign policy of peace and independence. It will be prepared to establish relations with all countries irrespective of their political and social systems on the basis of mutual respect for independence and sovereignty and accept economic and technical aid from any country with no political conditions attached. The acceptance of military aid by South Viet-Nam in the future shall come under the authority of the government set up after the general elections in South Viet-Nam provided for in Article 9 (b).
Chapter V
THE REUNIFICATION OF VIET-NAM AND THE RELATIONSHIP BETWEEN NORTH AND SOUTH VIET-NAM
Article 15
The reunification of Viet-Nam shall be carried out step by step through peaceful means on the basis of discussions and agreements between North and South Viet-Nam, without coercion or annexation by either party, and without foreign interference. The time for reunification will be agreed upon by North and
South Viet-Nam-Pending reunification:
(a) The military demarcation line between the two zones at the 17th parallel is only provisional and not a political or territorial boundary, as provided for in paragraph 6 of the Final Declaration of the 1954 Geneva Conference.
(b) North and South Viet-Nam shall respect the Demilitarized Zone on either side of the Provisional Military Demarcation Line.
(c) North and South Viet-Nam shall promptly start negotiations with a view to reestablishing-normal relations in various fields. Among the questions to be negotiated are the modalities of civilian movement across the Provisional Military Demarcation Line,
(d) North and South Viet-Nam shall not join any military alliance or military bloc and shall not allow foreign powers to maintain military bases, troops; military advisers, and military personnel on their respective territories, as stipulated in the 1954 Geneva Agreements on Viet-Nam.
THE JOINT MILITARY COMMISSIONS, THE INTERNATIONAL COMMISSION OF CONTROL AND SUPERVISION, THE INTERNATIONAL CONFERENCE
Article 16
(a) The Parties participating in the Paris Conference on Viet-Nam shall immediately designate representatives to form a Four-Party Joint Military Commission with the task of ensuring joint action by the parties in implementing the following provisions of this Agreement:
- The first paragraph of Article 2, regarding the enforcement of the cease-fire throughout South Viet-Nam;
- Article 3 (a), regarding the cease-fire by U.S. forces and those of the other foreign countries referred to in that Article;
- Article 3 (c), regarding the cease-fire between all parties in South Viet-Nam;
- Article 5, regarding the withdrawal from South Viet-Nam of U.S. troops and those of the other foreign countries mentioned in Article 3 (a);
- Article 6, regarding the dismantlement of military bases in South Viet-Nam of the United States and those of the other foreign countries mentioned in Article 3 (a);
- Article 8 (a), regarding the return of captured military personnel and foreign civilians of the parties;
- Article 8 (b), regarding the mutual assistance of the parties in getting information about those military personnel and foreign civilians of the parties missing in action.
(b) The Four-Party Joint Military Commission shall operate in accordance with the principle of consultations and unanimity. Disagreements shall be referred to the International Commission of Control and Supervision.
(c) The Four-Party Joint Military Commission shall begin operating immediately after the signing of this Agreement and end its activities in sixty days, after the completion of the withdrawal of U.S. troops and those of the other foreign countries mentioned in Article 3 (a) and the completion of the return of captured military personnel and foreign civilians of the parties.
(d) The four parties shall agree immediately on the organization, the working procedure, means of activity, and expenditures of the Four-Party Joint Military Commission.
Article 17
(a) The two South Vietnamese parties shall immediately designate representatives to form a Two-Party Joint Military Commission with the task of ensuring joint action by the two South Vietnamese parties in implementing the following provisions of this Agreement:
- The first paragraph of Article 2, regarding the enforcement of the cease-fire throughout South Viet-Nam, when the Four-Party Joint Military Commission has ended its activities;
- Article 3 (b), regarding the cease-fire between the two South Vietnamese parties;
- Article 3 (c), regarding the cease-fire between all parties in South Viet-Nam, when the Four-Party Joint Military Commission has ended its activities;
- Article 7, regarding the prohibition of the introduction of troops into South Viet-Nam and all other provisions of this Article;
- Article 8 (c), regarding the question of the return of Vietnamese civilian personnel captured and detained in South Viet-Nam;
- Article 1 3, regarding the reduction of the military effectives of the two South Vietnamese parties and the demobilization of the troops being reduced.
(b) Disagreements shall be referred to the International Commission of Control and Supervision.
(c) After the signing of this Agreement, the Two-Party Joint Military Commission shall agree immediately on the measures and organization aimed at enforcing the cease-fire and preserving peace in South Viet-Nam,
Article 18
(a) After the signing of this Agreement, an International Commission of Control and Supervision shall be established immediately.
(b) Until the International Conference provided for in Article 19 makes definitive arrangements, the International Commission of Control and Supervision will report to the four parties on matters concerning the control and supervision of the implementation of the following provisions of this Agreement:
- The first paragraph of Article 2, regarding the enforcement of the cease-fire throughout South Viet-Nam;
- Article 3 (a), regarding the cease-fire by U.S. forces and those of the other foreign countries referred to in that Article;
- Article 3 (c), regarding the cease-fire between all the parties in South Viet-Nam;
- Article 5, regarding the withdrawal from South Viet-Nam of U.S. troops and those of the other foreign countries mentioned in Article 3 (a);
- Article 6, regarding the dismantlement of military bases in South Viet-Nam of the United States and those of the other foreign countries mentioned in Article 3 (a);
- Article 8 (a), regarding the return of captured military personnel and foreign civilians of the parties.
The International Commission of Control and Supervision shall form control teams for carrying out its tasks. The four parties shall agree immediately on the location and operation of these teams. The parties will facilitate their operation.
(c) Until the International Conference makes definitive arrangements, the International Commission of Control and Supervision will report to the two South Vietnamese parties on matters concerning the control and supervision of the implementation of the following provisions of this Agreement:
- The first paragraph of Article 2, regarding the enforcement of the cease-fire throughout South Viet-Nam, when the Four-Party Joint Military Commission has ended its activities;
- Article 3 (b), regarding the cease-fire between the two South Vietnamese parties;
- Article 3 (c), regarding the cease-fire between all parties in South Viet-Nam, when the Four-Party Joint Military Commission has ended its activities;
- Article 7, regarding the prohibition of the introduction of troops into South Viet-Nam and all other provisions of this Article;
- Article 8 (c), regarding the question of the return of Vietnamese civilian personnel captured and detained in South Viet-Nam;
- Article 9 (b), regarding the free and democratic general elections in South Viet-Nam;
- Article 13, regarding the reduction of the military effectives of the two South Vietnamese parties and the demobilization of the troops being reduced.
The International Commission of Control and Supervision shall form control teams for carrying out its tasks. The two South Vietnamese parties shall agree immediately on the location and operation of these teams. The two South Vietnamese parties will facilitate their operation.
(d) The International Commission of Control and Supervision shall be composed of representatives of four countries: Canada, Hungary, Indonesia and Poland. The chairmanship of this Commission will rotate among the members for specific periods to be determined by the Commission.
(e) The International Commission of Control and Supervision shall carry out its tasks in accordance with the principle of respect for the sovereignty of South Viet-Nam.
(f) The International Commission of Control and Supervision shall operate in accordance with the principle of consultations and unanimity.
(g) The International Commission of Control and Supervision shall begin operating when a cease-fire comes into force in Viet-Nam. As regards the provisions in Article 18 (b) concerning the four parties, the International Commission of Control and Supervision shall end its activities when the Commission's tasks
of control and supervision regarding these provisions have been fulfilled. As regards the provisions in Article 18 (c) concerning the two South Vietnamese parties, the International Commission of Control and Supervision shall end its activities on the request of the government formed after the general
elections in South Viet-Nam provided for in Article 9 (b).
(h) The four parties shall agree immediately on the organization, means of activity, and expenditures of the International Commission of Control and Supervision. The relationship between the International Commission and the International Conference will be agreed upon by the International Commission and the International Conference.
Article 19
The parties agree on the convening of an International Conference within thirty days of the signing of this Agreement to acknowledge the signed agreements; to guarantee the ending of the war, the maintenance of peace in Viet-Nam, the respect of the Vietnamese people's fundamental national rights, and the South Vietnamese people's right to self-determination; and to contribute to and guarantee peace in Indochina.
The United States and the Democratic Republic of Viet-Nam, on behalf of the parties participating in the Paris Conference on Viet-Nam will propose to the following parties that they participate in this International Conference: the People's Republic of China, the Republic of France, the Union of Soviet Socialist Republics, the United Kingdom, the four countries of the International Commission of Control and Supervision, and the Secretary General of the United Nations, together with the parties participating in the Paris Conference on Viet-Nam.
Chapter VII
REGARDING CAMBODIA AND LAOS
Article 20
(a) The parties participating in the Paris Conference on Viet-Nam shall strictly respect the 1954 Geneva Agreements on Cambodia's and the 1954 Geneva Agreements on Laos, which recognized the Cambodian and the Lao peoples' fundamental national rights, i.e., the independence, sovereignty, unity, and
territorial integrity of these countries. The parties shall respect the neutrality of Cambodia and Laos.
The parties participating in the Paris Conference on Viet-Nam undertake to refrain from using the territory of Cambodia and the territory of Laos to encroach on the sovereignty and security of one another and of other countries.
(b) Foreign countries shall put an end to all military activities in Cambodia and Laos, totally withdraw from and refrain from reintroducing into these two countries troops, military advisers and military personnel, armaments, munitions and war material.
(c) The internal affairs of Cambodia and Laos shall be settled by the people of each of these countries without foreign interference.
(d) The problems existing between the Indochinese countries shall be settled by the Indochinese parties on the basis of respect for each other's independence, sovereignty, and territorial integrity, and non-interference in each other's internal affairs.
Chapter VIII
THE RELATIONSHIP BETWEEN THE UNITED STATES AND THE DEMOCRATIC
REPUBLIC OF VIET-NAM
Article 21
The United States anticipates that this Agreement will usher in an era of reconciliation with the Democratic Republic of Viet-Nam as with all the peoples of Indochina. In pursuance of its traditional policy, the United States will contribute to healing the wounds of war and to postwar reconstruction of the Democratic Republic of Viet-Nam and throughout Indochina.
Article 22
The ending of the war, the restoration of peace in Viet-Nam, and the strict implementation of this Agreement will create conditions for establishing a new, equal and mutually beneficial relationship between the United States and the Democratic Republic of Viet-Nam on the basis of respect for each other's independence and sovereignty, and non-interference in each other's internal affairs. At the same time this will ensure stable peace in Viet-Nam and contribute to the preservation of lasting peace in Indochina and Southeast Asia.
Chapter IX
OTHER PROVISIONS
Article 23
This Agreement shall enter into force upon signature by plenipotentiary representatives of the parties participating in the Paris Conference on Viet-Nam. All the parties concerned shall strictly implement this Agreement and its Protocols. Done in Paris this twenty-seventh day of January, one thousand nine hundred and seventy-three, in English and Vietnamese. The English and Vietnamese texts are official and equally authentic.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA: REPUBLIC OF VIET-NAM:
(Signed): (Signed):
William P. Rogers Tran Van Lam
Secretary of State Minister for Foreign Affairs
FOR THE GOVERNMENT OF THE FOR THE PROVISIONAL DEMOCRATIC REPUBLIC REVOLUTIONARY GOVERNMENT OF VIET-NAM: OF THE REPUBLIC OF SOUTH VIET-NAM:
(Signed): (Signed):
Nguyen Duy Trinh Nguyen Thi Binh
Minister for Foreign Affairs Minister for Foreign Affairs
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Kissinger: Vietnam failures `we did to ourselves'
[pic]Secretary of State Hillary Rodham Clinton speaks at a conference on the Vietnam War, "The American Experience in Southeast Asia, 1946-1975", sponsored by the Department of State's Office of the Historian, Wednesday, Sept. 29, 2010, at the State Department in Washington. (AP Photo/J. Scott Applewhite)
By Robert Burns
AP National Security Writer / September 29, 2010
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WASHINGTON—Henry Kissinger, who helped steer Vietnam policy during the war's darkest years, said Wednesday he is convinced that "most of what went wrong in Vietnam we did to ourselves" -- beginning with underestimating the tenacity of North Vietnamese leaders.
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Offering a somber assessment of the conflict, which ended in 1975 with the humiliating fall of Saigon, Kissinger lamented the anguish that engulfed a generation of Americans as the war dragged on.
And he said the core problem for the U.S. was that its central objective of preserving an independent, viable South Vietnamese state was unachievable -- and that the U.S. adversary was unbending.
"America wanted compromise," he said. "Hanoi wanted victory."
Kissinger spoke at a State Department conference on the history of U.S. involvement in Southeast Asia. The department in recent months has published a series of reports, based on newly declassified documents, covering U.S. decision-making on Vietnam in the final years of the war.
Kissinger was national security adviser and secretary of state under President Richard M. Nixon and continued in the role of chief diplomat during the administration of President Gerald R. Ford.
In introducing Kissinger, Secretary of State Hillary Rodham Clinton -- who opposed the war as a college student and has written that she held contradictory feelings about expressing her opposition -- spoke in broad terms about how the conflict influenced her generation's view of the world.
"Like everyone in those days, I had friends who enlisted -- male friends who enlisted -- were drafted, resisted, or became conscientious objectors; many long, painful, anguished conversations," she said. "And yet, the lessons of that era continue to inform the decisions we make."
Kissinger offered a more personal, extensive assessment of the war that killed more than 58,000 U.S. servicemen.
He said he regretted that what should have been straightforward disagreements over the U.S. approach to Vietnam became "transmuted into a moral issue -- first about the moral adequacy of American foreign policy altogether and then into the moral adequacy of America."
"To me, the tragedy of the Vietnam war was not that there were disagreements -- that was inevitable, given the complexity of the (conflict) -- but that the faith of Americans in each other became destroyed in the process," he said.
He called himself "absolutely unreconstructed" on that point.
"I believe that most of what went wrong in Vietnam we did to ourselves," he said, adding, "I would have preferred another outcome -- at least another outcome that was not so intimately related to the way that we tore ourselves apart."
In hindsight, Kissinger said, it is clear just how steadfast the North Vietnamese communists were in their goal of unification of the North and the South, having defeated their French colonial rulers in 1954.
Historians are coming to the same conclusion.
In his account of the conflict, "Vietnam: The History of an Unwinnable War, 1945-1975," military historian John Prados wrote, "The (North) had a well-defined goal -- reunification of the country -- and an absolute belief in its cause."
Kissinger credited his North Vietnamese adversary in the peace negotiations -- Le Duc Tho -- with skillfully and faithfully carrying out his government's instructions to outmaneuver the Americans.
"He operated on us like a surgeon with a scalpel -- with enormous skill," Kissinger said.
Washington and Hanoi signed a peace accord in January 1973, and Kissinger and Tho were jointly awarded the Nobel Peace prize that year for their role in the negotiation. Tho declined the award.
The peace accords provided a way out of Vietnam for the U.S., but it left South Vietnam vulnerable to a communist takeover.
"We knew it was a precarious agreement," Kissinger said, and that the conflict was not really over. But Washington also was convinced that the South Vietnamese could hold off the communists, barring an all-out invasion.
Kissinger joked that his long negotiating sessions with Tho took a heavy and lasting toll.
"I would look a lot better if I had never met him," he said.
A flavor of the negotiating difficulties is revealed in a newly declassified transcript of a meeting between Kissinger and Tho in Paris on May 21, 1973, in which they discussed problems implementing the peace accords.
"We have been meeting for only 45 minutes and already you have totally confused us," Kissinger told Tho.
To which Tho replied: "No, you are not confused yourself. You make the problem confused."
------
Online:
Most recent volume of State Department reports on Vietnam: [pic]
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Former secretary of state Henry Kissinger discusses his controversial career
[pic]
Former secretary of state Henry Kissinger speaks at the Lyndon B. Johnson School of Public Affairs on Tuesday evening. Kissinger discussed his controversial record, and said he had no regrets about his actions during the Vietnam War.
Photo Credit: Gabriel Lopez | Daily Texan Staff
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Published on April 27, 2016 at 12:59 am Last update on April 27, 2016 at 2:14 am
By Caleb Wong
Addressing his controversial record as former secretary of state, Henry Kissinger acknowledged “mistakes were made” by America in the Vietnam War but said he had no regrets about his actions in the war at the Lyndon B. Johnson School on Tuesday.
“We acted on the basis of our best judgment at the time,” Kissinger said. “One should stand by one’s decisions.”
Kissinger, former American diplomat and Harvard professor, served as secretary of state from 1973 to 1977. He is best known for his role in the Vietnam War — for negotiating a ceasefire between North and South Vietnam and expanding the war into Cambodia through a secret bombing in 1969.
Kissinger — who is alternately praised as a brilliant statesman and denounced as a “war criminal” — answered questions about his time in office from Mark Updegrove, moderator and LBJ library director, and insisted on taking unrestricted questions from the audience.
Responding to criticism about the Cambodia “carpet bombing,” Kissinger denied he was a “war criminal.” He defended the action as necessary because American forces would have been “absolutely hopeless” if the Vietnamese fighters were allowed to keep their base there.
“It is much less than the Obama administration has done in similar base areas, such as Pakistan. When we wiped out the base areas, the casualties dropped by 80 percent,” Kissinger said. “It was correct, and it was in the American interest.”
Readers of the Foreign Policy magazine have voted him as the best secretary of state in the last 50 years. He won a Nobel Peace Prize in 1973, which he later sought to return after South Vietnam fell to the communist forces in North Vietnam in 1975.
Kissinger said the congressional ban on further involvement in Vietnam, combined with the Watergate scandal, made it politically impossible for the United States to enforce the peace treaty in Vietnam. The North Vietnamese, who reneged on the cease-fire, “hold the Olympic record for breaking agreements,” he said.
“America should not torture itself on the view that it could have had a settlement earlier if their presidents had been more willing,” Kissinger said.
One audience member, who said he was imprisoned for 10 years because he was abandoned by Kissinger’s Peace Accords, questioned Kissinger’s handling of the Fall of Saigon. In response, Kissinger said the “divisions in our country” prevented the U.S. from stopping the capture of the South Vietnamese capital.
“I have great sympathy for the Vietnamese,” Kissinger said. “It is a historic tragedy that America found itself so divided and could not solve its domestic debates.”
LBJ professor Jeremi Suri, who wrote a book about Kissinger’s approach to international relations, said Kissinger seemed to struggle between showing sympathy for the Vietnamese and justifying his policies.
“It’s more than memory,” Suri said. “It’s personal experience.”
Mechanical engineering junior Sam Roach, who protested Kissinger’s record as secretary of state outside the LBJ School, said Kissinger has violated human rights.
“He should be tried for war crimes,” Roach said. “It sets a bad precedent for future leaders.”
Asked to predict history’s judgment, Kissinger declined to say what it would look like.
“I tried to do the best I can,” Kissinger said. “That’s all I can say.”
{13}
18 U.S. Code § 112 - Protection of foreign officials, official guests, and internationally protected persons
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
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• Authorities (CFR)
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(a)
Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign official, official guest, or internationally protected person or makes any other violent attack upon the person or liberty of such person, or, if likely to endanger his person or liberty, makes a violent attack upon his official premises, private accommodation, or means of transport or attempts to commit any of the foregoing shall be fined under this title or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon, or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.
(b) Whoever willfully—
(1)
intimidates, coerces, threatens, or harasses a foreign official or an official guest or obstructs a foreign official in the performance of his duties;
(2)
attempts to intimidate, coerce, threaten, or harass a foreign official or an official guest or obstruct a foreign official in the performance of his duties; or
(3) within the United States and within one hundred feet of any building or premises in whole or in part owned, used, or occupied for official business or for diplomatic, consular, or residential purposes by—
(A)
a foreign government, including such use as a mission to an international organization;
(B)
an international organization;
(C)
a foreign official; or
(D)
an official guest;
congregates with two or more other persons with intent to violate any other provision of this section;
shall be fined under this title or imprisoned not more than six months, or both.
(c)
For the purpose of this section “foreign government”, “foreign official”, “internationally protected person”, “international organization”, “national of the United States”, and “official guest” shall have the same meanings as those provided in section 1116(b) of this title.
(d)
Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States.
(e)
If the victim of an offense under subsection (a) is an internationally protected person outside the United States, the United States may exercise jurisdiction over the offense if (1) the victim is a representative, officer, employee, or agent of the United States, (2) an offender is a national of the United States, or (3) an offender is afterwards found in the United States. As used in this subsection, the United States includes all areas under the jurisdiction of the United States including any of the places within the provisions of sections 5 and 7 of this title and section 46501(2) of title 49.
(f)
In the course of enforcement of subsection (a) and any other sections prohibiting a conspiracy or attempt to violate subsection (a), the Attorney General may request assistance from any Federal, State, or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary, notwithstanding.
(June 25, 1948, ch. 645, 62 Stat. 688; Pub. L. 88–493, § 1, Aug. 27, 1964, 78 Stat. 610; Pub. L. 92–539, title III, § 301, Oct. 24, 1972, 86 Stat. 1072; Pub. L. 94–467, § 5, Oct. 8, 1976, 90 Stat. 1999; Pub. L. 95–163, § 17(b)(1), Nov. 9, 1977, 91 Stat. 1286; Pub. L. 95–504, § 2(b), Oct. 24, 1978, 92 Stat. 1705; Pub. L. 100–690, title VI, § 6478, Nov. 18, 1988, 102 Stat. 4381; Pub. L. 103–272, § 5(e)(2), July 5, 1994, 108 Stat. 1373; Pub. L. 103–322, title XXXII, § 320101(b), title XXXIII, § 330016(1)(G), (K), Sept. 13, 1994, 108 Stat. 2108, 2147; Pub. L. 104–132, title VII, § 721(d), Apr. 24, 1996, 110 Stat. 1298; Pub. L. 104–294, title VI, § 604(b)(12)(A), Oct. 11, 1996, 110 Stat. 3507.)
LII has no control over and does not endorse any external Internet site that contains links to or references LII.
{14}
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U.S. Department of State
Diplomacy in Action
Human Rights
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The protection of fundamental human rights was a foundation stone in the establishment of the United States over 200 years ago. Since then, a central goal of U.S. foreign policy has been the promotion of respect for human rights, as embodied in the Universal Declaration of Human Rights. The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises.
Because the promotion of human rights is an important national interest, the United States seeks to:
• Hold governments accountable to their obligations under universal human rights norms and international human rights instruments;
• Promote greater respect for human rights, including freedom from torture, freedom of expression, press freedom, women's rights, children's rights, and the protection of minorities;
• Promote the rule of law, seek accountability, and change cultures of impunity;
• Assist efforts to reform and strengthen the institutional capacity of the Office of the UN High Commissioner for Human Rights and the UN Commission on Human Rights; and
• Coordinate human rights activities with important allies, including the EU, and regional organizations.
The Bureau of Democracy, Human Rights, and Labor (DRL) applies three key principles to its work on human rights:
First, DRL strives to learn the truth and state the facts in all of its human rights investigations, reports on country conditions, speeches and votes in the UN, and asylum profiles. Each year, DRL develops, edits, and submits to Congress a 5,000-page report on human rights conditions in over 190 countries that is respected globally for its objectivity and accuracy. DRL also provides relevant information on country conditions to the Immigration and Naturalization Service and immigration judges in asylum cases.
Second, DRL takes consistent positions concerning past, present, and future abuses. With regard to past abuses, it actively promotes accountability. To stop ongoing abuses, the bureau uses an "inside-outside" approach that combines vigorous, external focus on human rights concerns (including the possibility of sanctions) with equally robust support for internal reform. To prevent future abuses, it promotes early warning and preventive diplomacy. Each year DRL ensures that human rights considerations are incorporated into U.S. military training and security assistance programs; promotes the rights of women through international campaigns for political participation and full equality; conducts high-level human rights dialogues with other governments; coordinates U.S. policy on human rights with key allies; and raises key issues and cases through diplomatic and public channels.
Third, DRL forges and maintains partnerships with organizations, governments, and multilateral institutions committed to human rights. The bureau takes advantage of multilateral fora to focus international attention on human rights problems and to seek correction. Each year, DRL provides significant technical, financial, or staff support for U.S. delegations to the annual meetings of several international human rights organizations; conducts regular consultations with Native American tribes and serves as the Secretary's principal advisor on international indigenous rights issues; maintains relations with the UN High Commissioner on Human Rights; and supports the creation of effective multilateral human rights mechanisms and institutions for accountability.
In This Section:
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Voluntary Principles on Security and Human Rights
Established in 2000, the Voluntary Principles on Security and Human Rights (Voluntary Principles) is a multi-stakeholder initiative (MSI) involving governments, companies, and non-governmental organizations that promotes implementation of a set of principles that guide oil, gas, and mining companies on providing security for their operations in a manner that respects human rights. Fact Sheet»
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|Kennedy White House tapes offer new insight |
|By Bill Delaney/CNN |
|BOSTON (November 24) -- The Kennedy Library has released 37 hours of tape recordings of meetings, memos, phone calls and dictation of |
|President John F. Kennedy, including four hours of tape long held by Kennedy secretary Evelyn Lincoln. |
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|The disclosure marks the largest single release ever of Kennedy recordings and offers important new insights into the president's |
|reaction to unraveling events in Vietnam not long before his death. |
|On one tape recorded November 4, 1963, Kennedy dictates a memo seeming to regret the assassination of South Vietnam's President Ngo |
|Dinh Diem, following a coup Kennedy endorsed. |
|Only weeks before his own assassination Kennedy recorded, "I feel that we must bear a good deal of responsibility, in part beginning |
|with our cable of early August, in which we suggested the coup, period. In my judgment that wire was badly drafted, comma, it should |
|never have been sent on a Saturday." |
|The dictation continues until Kennedy was interrupted by his son John Kennedy Jr. Kennedy asks his son, "Why do the leaves fall? And |
|why does the snow come on the ground? Why do the leaves turn green?" |
|Kennedy then returns to the memo, saying, "I was shocked by the death of Diem Ngo. I met Diem with Justice Douglas many years ago. He |
|was a extraordinary character. While he became increasingly difficult in the last months, nevertheless over a 10-year period he held |
|his country together." |
|The tapes offer insight, but no new conclusions about what might have occurred in Southeast Asia had Kennedy lived. |
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{16}
1 U.S. Code § 112 - Statutes at Large; contents; admissibility in evidence
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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The Archivist of the United States shall cause to be compiled, edited, indexed, and published, the United States Statutes at Large, which shall contain all the laws and concurrent resolutions enacted during each regular session of Congress; all proclamations by the President in the numbered series issued since the date of the adjournment of the regular session of Congress next preceding; and also any amendments to the Constitution of the United States proposed or ratified pursuant to article V thereof since that date, together with the certificate of the Archivist of the United States issued in compliance with the provision contained in section 106b of this title. In the event of an extra session of Congress, the Archivist of the United States shall cause all the laws and concurrent resolutions enacted during said extra session to be consolidated with, and published as part of, the contents of the volume for the next regular session. The United States Statutes at Large shall be legal evidence of laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
(July 30, 1947, ch. 388, 61 Stat. 636; Sept. 23, 1950, ch. 1001, § 1, 64 Stat. 979; Oct. 31, 1951, ch. 655, § 3, 65 Stat. 710; Pub. L. 98–497, title I, § 107(d), Oct. 19, 1984, 98 Stat. 2291.)
{17}
1 U.S. Code § 112a - United States Treaties and Other International Agreements; contents; admissibility in evidence
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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(a)
The Secretary of State shall cause to be compiled, edited, indexed, and published, beginning as of January 1, 1950, a compilation entitled “United States Treaties and Other International Agreements,” which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evidence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
(b) The Secretary of State may determine that publication of certain categories of agreements is not required, if the following criteria are met:
(1)
such agreements are not treaties which have been brought into force for the United States after having received Senate advice and consent pursuant to section 2(2) of Article II of the Constitution of the United States;
(2)
the public interest in such agreements is insufficient to justify their publication, because (A) as of the date of enactment of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, the agreements are no longer in force,[1] (B) the agreements do not create private rights or duties, or establish standards intended to govern government action in the treatment of private individuals; (C) in view of the limited or specialized nature of the public interest in such agreements, such interest can adequately be satisfied by an alternative means; or (D) the public disclosure of the text of the agreement would, in the opinion of the President, be prejudicial to the national security of the United States; and
(3)
copies of such agreements (other than those in paragraph (2)(D)), including certified copies where necessary for litigation or similar purposes, will be made available by the Department of State upon request.
(c)
Any determination pursuant to subsection (b) shall be published in the Federal Register.
(d)
The Secretary of State shall make publicly available through the Internet website of the Department of State each treaty or international agreement proposed to be published in the compilation entitled “United States Treaties and Other International Agreements” not later than 180 days after the date on which the treaty or agreement enters into force.
(Added Sept. 23, 1950, ch. 1001, § 2, 64 Stat. 980; amended Pub. L. 103–236, title I, § 138, Apr. 30, 1994, 108 Stat. 397; Pub. L. 108–458, title VII, § 7121(a), Dec. 17, 2004, 118 Stat. 3807.)
{18}
50 U.S. Code § 4105 - Prisoners of war
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
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(a) “Prisoner of war” defined
As used in subsection (b) of this section, the term “prisoner of war” means any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States who was held as a prisoner of war for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.
(b) Payment of claims; rate allowed; certification of claims
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any prisoner of war for compensation for the violation by the enemy government by which he was held as a prisoner of war, or its agents, of its obligation to furnish him the quantity or quality of food to which he was entitled as a prisoner of war under the terms of the Geneva Convention of July 27, 1929. The compensation allowed to any prisoner of war under the provisions of this subsection shall be at the rate of $1 for each day he was held as a prisoner of war on which the enemy government or its agents failed to furnish him such quantity or quality of food. Any claim allowed under the provisions of this subsection shall be certified to the Secretary of the Treasury for payment out of the War Claims Fund established by section 4110 of this title.
(c) Persons entitled to paymentsClaims pursuant to subsection (b) shall be paid to the person entitled thereto, and shall in case of death of the persons who are entitled be payable only to or for the benefit of the following persons:
(1)
Widow or husband if there is no child or children of the deceased;
(2)
Widow or husband and child or children of the deceased, one-half to the widow or husband and the other half to the child or children of the deceased in equal shares;
(3)
Child or children of the deceased (in equal shares) if there is no widow or husband; and
(4)
Parents (in equal shares) if there is no widow, husband, or child.
(d) Additional definition of “prisoner of war”; payment of claims; rate allowed; persons entitled to payments
(1)
As used in this subsection the term “prisoner of war” means any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States, who was held a prisoner of war for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.
(2) The Commission is authorized to receive, adjudicate according to law, and to provide for the payment of any claim filed by any prisoner of war for compensation—
(A)
for the violations by the enemy government by which he was held as a prisoner of war, or its agents, of such government’s obligations under title III, section III, of the Geneva Convention of July 27, 1929, relating to labor of prisoners of war; or
(B)
for inhumane treatment by the enemy government by which he was held, or its agents. The term “inhumane treatment” as used herein shall include, but not be limited to, violation by such enemy government, or its agents, of one or more of the provisions of articles 2, 3, 7, 10, 12, 13, 21, 22, 54, 56, or 57, of the Geneva Convention of July 27, 1929.
(3) Compensation shall be allowed to any prisoner of war under this subsection at the rate of $1.50 per day for each day he was held as a prisoner of war on which he alleges and proves in a manner acceptable to the Commission—
(A)
the violation by such enemy government or its agents of the provisions of title III, section III, of the Geneva Convention of July 27, 1929; or
(B)
any inhumane treatment as defined herein.
Any claim allowed under the provisions of this subsection shall be certified to the Secretary of the Treasury for payment out of the War Claims Fund established by section 4110 of this title. In no event shall the compensation allowed to any prisoner of war under this subsection exceed the sum of $1.50 with respect to any one day.
(4) Claims pursuant to subsection (d)(2) shall be paid to the person entitled thereto, or to his legal or natural guardian if he has one, and shall, in case of death of the persons who are entitled be payable only to or for the benefit of the following persons:
(A)
widow or husband if there is no child or children of the deceased;
(B)
widow or husband and child or children of the deceased, one-half to the widow or husband and the other half to the child or children of the deceased in equal shares;
(C)
child or children of the deceased (in equal shares) if there is no widow or husband; and
(D)
parents (in equal shares) if there is no widow, husband, or child.
(e) Extension to Korean War prisoners
(1)
As used in this subsection the term “prisoner of war” means any regularly appointed, enrolled, enlisted, or inducted member of the Armed Forces of the United States who was held as a prisoner of war for any period of time subsequent to June 25, 1950, by any hostile force with which the Armed Forces of the United States were actually engaged in armed conflict subsequent to such date and prior to August 21, 1954, or any person (military or civilian) assigned to duty in the U.S.S. Pueblo who was captured by the military forces of North Korea on January 23, 1968, and thereafter held prisoner by the Government of North Korea for any period of time ending on or before December 23, 1968, except any person who, at any time, voluntarily, knowingly, and without duress, gave aid to or collaborated with or in any manner served any such hostile force.
(2)
The Commission is authorized to receive and to determine, according to law, the amount and validity, and provide for the payment of any claim filed by any prisoner of war for compensation for the failure of the hostile force by which he was held as a prisoner of war, or its agents, to furnish him the quantity or quality of food prescribed for prisoners of war under the terms of the Geneva Convention of July 27, 1929. The compensation allowed to any prisoner of war under the provisions of this paragraph shall be at the rate of $1 for each day on which he was held as a prisoner of war and on which such hostile force, or its agents, failed to furnish him such quantity or quality of food.
(3) The Commission is authorized to receive and to determine, according to law, the amount and validity and provide for the payment of any claim filed by any prisoner of war for compensation—
(A)
for the failure of the hostile force by which he was held as a prisoner of war, or its agents, to meet the conditions and requirements prescribed under title III, section III, of the Geneva Convention of July 27, 1929, relating to labor of prisoners of war; or
(B)
for inhumane treatment by the hostile force by which he was held, or its agents. The term “inhumane treatment” as used herein shall include, but not be limited to, failure of such hostile force, or its agents, to meet the conditions and requirements of one or more of the provisions of articles 2, 3, 7, 10, 12, 13, 21, 22, 54, 56, or 57 of the Geneva Convention of July 27, 1929.
Compensation shall be allowed to any prisoner of war under this paragraph at the rate of $1.50 per day for each day on which he was held as a prisoner of war and with respect to which he alleges and proves in a manner acceptable to the Commission the failure to meet the conditions and requirements described in subparagraph (A) or the inhumane treatment described in subparagraph (B). In no event shall the compensation allowed to any prisoner of war under this paragraph exceed the sum of $1.50 with respect to any one day.
(4)
Any claim allowed by the Commission under this subsection shall be certified to the Secretary of the Treasury for payment out of funds appropriated pursuant to this subsection and shall be paid by the Secretary of the Treasury to the person entitled thereto, and shall, in case of death or determination of death of the persons who are entitled, be paid only to or for the benefit of the persons specified, and in the order established, by paragraph (4) of subsection (d) of this section.
(5) Each claim filed under this subsection must be filed not later than one year from whichever of the following dates last occurs:
(A)
August 21, 1954;
(B)
The date the prisoner of war by whom the claim is filed returned to the jurisdiction of the Armed Forces of the United States; or
(C)
The date upon which the Department of Defense makes a determination that the prisoner of war has actually died or is presumed to be dead, in the case of any prisoner of war who has not returned to the jurisdiction of the Armed Forces of the United States;
(D)
In the case of any person assigned to duty in the U.S.S. Pueblo referred to in paragraph (1) of this subsection, one year after June 24, 1970.
The Commission shall complete its determinations with respect to each claim filed under this subsection at the earliest practicable date, but in no event later than one year after the date on which such claim was filed.
(6)
Any claim allowed under the provisions of this subsection shall be paid from funds appropriated pursuant to paragraph (7) of this subsection.
(7)
(A)
There are authorized to be appropriated such amounts as may be necessary to carry out the purposes of this subsection, including necessary administrative expenses.
(B)
The Commission shall determine, from time to time, the share of its administrative expenses attributable to the performance of its functions under this subsection and make the appropriate adjustments in its accounts, and determinations and adjustments made pursuant to this subparagraph shall be final and conclusive.
(f) Vietnam conflict; definitions; authority of Commission; classes of claims; rate of compensation; certification for payment; persons entitled to payments; filing date; determination of claims; fund for payment; appropriations
(1) As used in this subsection—
(A)
the term “Vietnam conflict” relates to the period beginning February 28, 1961, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress; and
(B)
the term “prisoner of war” means any regularly appointed, enrolled, enlisted, or inducted member of the Armed Forces of the United States who was held as a prisoner of war for any period of time during the Vietnam conflict by any force hostile to the United States, except any such member who, at any time, voluntarily, knowingly, and without duress, gave aid to or collaborated with, or in any manner served, such hostile force.
(2)
The Commission is authorized to receive and to determine, according to law, the amount and validity, and provide for the payment of any claim filed by any prisoner of war for compensation for the failure of the hostile force by which he was held as a prisoner of war, or its agents, to furnish him the quantity or quality of food prescribed for prisoners of war under the terms of the Geneva Convention of August 12, 1949. The compensation allowed to any prisoner of war under the provisions of this paragraph shall be at the rate of $2 for each day on which he was held as a prisoner of war and on which such hostile force, or its agents, failed to furnish him such quantity or quality of food.
(3) The Commission is authorized to receive and to determine, according to law, the amount and validity and provide for the payment of any claim filed by any prisoner of war for compensation—
(A)
for the failure of the hostile force by which he was held as a prisoner of war, or its agents, to meet the conditions and requirements prescribed under chapter VIII, section III, of the Geneva Convention of August 12, 1949, relating to labor of prisoners of war; or
(B)
for inhumane treatment by the hostile force by which he was held, or its agents. The term “inhumane treatment” as used in this subparagraph shall include, but not be limited to, failure of such hostile force, or its agents, to meet the conditions and requirements of one or more of the provisions of articles 3, 12, 13, 14, 17, 19, 22, 23, 24, 25, 27, 29, 43, 44, 45, 46, 47, 48, 84, 85, 86, 87, 88, 89, 90, 97, or 98 of the Geneva Convention of August 12, 1949.
Compensation shall be allowed to any prisoner of war under this paragraph at the rate of $3 per day for each day on which he was held as a prisoner of war and with respect to which he alleges and proves in a manner acceptable to the Commission the failure to meet the conditions and requirements described in subparagraph (A) of this paragraph or the inhumane treatment described in subparagraph (B) of this paragraph. In no event shall the compensation allowed to any prisoner of war under this paragraph exceed the sum of $3 with respect to any one day.
(4)
Any claim allowed by the Commission under this subsection shall be certified to the Secretary of the Treasury for payment out of funds appropriated pursuant to this subsection and shall be paid by the Secretary of the Treasury to the person entitled thereto, and shall, in the case of death or determination of death of the persons who are entitled, be paid only to or for the benefit of the persons specified, and in the order established, by subsection (d)(4) of this section.
(5) Each claim filed under this subsection must be filed not later than three years from whichever of the following dates last occurs:
(A)
June 24, 1970;
(B)
the date the prisoner of war by whom the claim is filed returned to the jurisdiction of the Armed Forces of the United States; or
(C)
the date upon which the Department of Defense makes a determination that the prisoner of war has actually died or is presumed to be dead, in the case of any prisoner of war who has not returned to the jurisdiction of the Armed Forces of the United States.
The Commission shall complete its determinations with respect to each claim filed under this subsection at the earliest practicable date, but in no event later than one year after the date on which such claim was filed.
(6)
Any claim allowed under the provisions of this subsection shall be paid from funds appropriated pursuant to paragraph (7) of this subsection.
(7)
There are authorized to be appropriated such amounts as may be necessary to carry out the purposes of this subsection, including necessary administrative expenses.
(g) Manner of payment
Where any person entitled to payment under this section is under any legal disability, payment may be made in accordance with the provisions of subsection (e) of section 4104 of this title.
(July 3, 1948, ch. 826, title I, § 6, 62 Stat. 1244; Sept. 30, 1950, ch. 1116, 64 Stat. 1090; Apr. 9, 1952, ch. 167, § 1, 66 Stat. 47; Apr. 9, 1952, ch. 168, § 2, 66 Stat. 49; Aug. 21, 1954, ch. 784, § 2, 68 Stat. 761; Aug. 31, 1954, ch. 1162, title I, § 102(a)(1), 68 Stat. 1034; Pub. L. 87–846, title I, § 102, Oct. 22, 1962, 76 Stat. 1107; Pub. L. 91–289, §§ 1, 2, June 24, 1970, 84 Stat. 323.)
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50 USC 4101: Foreign Claims Settlement Commission of the United States Text contains those laws in effect on June 23, 2017
From Title 50-WAR AND NATIONAL DEFENSECHAPTER 51-WAR CLAIMSSUBCHAPTER I-TITLE I OF WAR CLAIMS ACT OF 1948
Jump To: Source CreditReferences In TextCodificationAmendmentsEffective DateShort Title
§4101. Foreign Claims Settlement Commission of the United States
(a) Employment of personnel; use of other facilities and services
The Foreign Claims Settlement Commission of the United States (hereinafter referred to as the "Commission") may, in accordance with the provisions of the civil-service laws and chapter 51 and subchapter III of chapter 53 of title 5, appoint and fix the compensation of such officers, attorneys, and employees, and may make such expenditures, as may be necessary to carry out its functions. Officers and employees of any other department or agency of the Government may, with the consent of the head of such department or agency, be assigned to assist the Commission in carrying out its functions. The Commission may, with the consent of the head of any other department or agency of the Government, utilize the facilities and services of such department or agency in carrying out the functions of the Commission.
(b) Rules and regulations; delegation of functions; time limit on filing of claims
The Commission may prescribe such rules and regulations as may be necessary to enable it to carry out its functions, and may delegate functions to any member, officer, or employee of the Commission. The Commission shall give public notice of the time when, and the limit of time within which, claims may be filed, which notice shall be published in the Federal Register. The limit of time within which claims may be filed with the Commission shall in no event be later than March 31, 1952. The Commission shall take immediate action to advise all persons entitled to file claims under the provisions of this subchapter administered by the Commission of their rights under such provisions, and to assist them in the preparation and filing of their claims.
(c) Subpenas; issuance; contempt; witness fees; administration of oaths
(1) For the purpose of any hearing, examination, or investigation under this subchapter, the Commission and those employees designated by the Commission shall have the power to issue subpenas requiring persons to appear and testify or to appear and produce documents, or both, at any designated place where such hearing, examination, or investigation is being held. The Commission or any employee so designated shall, upon application of a claimant, issue to such claimant subpenas requiring the attendance and testimony of witnesses or the production of documents, or both, required by such claimant in hearings upon his claim: Provided, That the claimant making such application pay the witness fees and mileage of any witness or witnesses subpenaed upon his request. The production of a person's documents at any place other than his place of business shall not be required, however, in any case in which, prior to the return date specified in the subpena with respect thereto, such person either has furnished the issuer of the subpena with a copy of such documents (certified by such person under oath to be a true and correct copy) or has entered into a stipulation with the issuer of the subpena as to the information contained in such documents.
(2) The Commission may, in case of a failure or refusal on the part of any person to comply with any such subpena, invoke the aid of any United States district court within the jurisdiction of which the hearing, examination, or investigation is being conducted, or such person resides or transacts business. Such court may issue an order requiring such person to appear at the designated place of hearing, examination, or investigation, there to give or produce testimony or documentary evidence concerning the matter in question. Any failure to obey such order of the court shall be punishable by such court as a contempt thereof. All process in any such case may be served in the judicial district wherein such person resides or transacts business or wherever such person may be found.
(3) Witnesses subpenaed under this subsection shall be paid the same fees and mileage that are allowed and paid witnesses in United States district courts.
(4) Any member of the Commission, and any employee of the Commission authorized by the Commission to do so, may administer to, or take from, any person an oath, affirmation, or affidavit when such action is necessary or appropriate in the performance of the functions or activities of the Commission.
(July 3, 1948, ch. 826, title I, §2, 62 Stat. 1240 ; May 27, 1949, ch. 145, §1(1), 63 Stat. 112 ; Oct. 28, 1949, ch. 782, title XI, §1106(a), 63 Stat. 972 ; Aug. 16, 1950, ch. 718, 64 Stat. 449 ; Apr. 5, 1951, ch. 27, 65 Stat. 28 ; 1954 Reorg. Plan No. 1 §§2, 4, eff. July 1, 1954, 19 F.R. 3985, 68 Stat. 1279; Aug. 21, 1954, ch. 784, §3, 68 Stat. 762 ; Pub. L. 87–846, title I, §§102, 104(a), Oct. 22, 1962, 76 Stat. 1107 , 1113; Pub. L. 96–209, title I, §108, Mar. 14, 1980, 94 Stat. 97 .)
References in Text
This subchapter, referred to in subsecs. (b) and (c)(1), was in the original "this title", meaning title I of act July 3, 1948, ch. 826, 62 Stat. 1240 , which is classified principally to this subchapter. For complete classification of title I to the Code, see Tables.
Codification
In subsec. (a), "chapter 51 and subchapter III of chapter 53 of title 5" was substituted for "the Classification Act of 1949, as amended" on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631 , the first section of which enacted Title 5, Government Organization and Employees.
Section was formerly classified to section 2001 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.
Amendments
1980-Subsec. (d). Pub. L. 96–209 struck out subsec. (d) which provided for terms of office of Chairman and members of Foreign Claims Settlement Commission of United States. See section 1622c(c) of Title 22, Foreign Relations and Intercourse.
1962-Subsecs. (b), (c)(1). Pub. L. 87–846, §102, made technical amendment to reference in original act which appears in text as reference to this subchapter.
Subsec. (d). Pub. L. 87–846, §104(a), added subsec. (d).
1954-Subsec. (a). Act Aug. 21, 1954, struck out subsec. (a) which related to establishment and composition of the former War Claims Commission, and which had been affected by Reorg. Plan No. 1 of 1954 (see Transfer of Functions note below), redesignated subsec. (b) as (a) and substituted "The Foreign Claims Settlement Commission of the United States (hereinafter referred to as the 'Commission')" for "The Commission", meaning the former War Claims Commission.
Subsecs. (b) to (d). Act Aug. 21, 1954, §3(a), designated subsecs. (b) to (d) as (a) to (c), respectively.
Former subsec. (e). Act Aug. 21, 1954, §3(a), repealed subsec. (e) which related to termination of former War Claims Commission.
1951-Subsec. (c). Act Apr. 5, 1951, extended time limit on filing of claims from Mar. 1, 1951 to Mar. 31, 1952, and authorized Commission to advise claimants of their rights.
1950-Subsecs. (d), (e). Act Aug. 16, 1950, added subsec. (d) and redesignated former subsec. (d) as (e).
1949-Subsec. (b). Act Oct. 28, 1949, substituted "Classification Act of 1949" for "Classification Act of 1923".
Subsec. (c). Act May 27, 1949, extended time within which persons may file claims until Mar. 1, 1951.
Effective Date of 1980 Amendment
Amendment by Pub. L. 96–209 effective Mar. 14, 1980, see title VI of Pub. L. 96–209, set out as an Effective Date note under section 1622a of Title 22, Foreign Relations and Intercourse.
Effective Date of 1951 Amendment
Act Apr. 5, 1951, ch. 27, 65 Stat. 28 , provided that the amendment made by that Act is effective as of Mar. 1, 1951.
Short Title of 1954 Amendment
Act Aug. 31, 1954, ch. 1162, title I, §1, 68 Stat. 1033 , provided: "That this Act [see Tables for classification] may be cited as the 'War Claims Act Amendments of 1954'."
Short Title
Act July 3, 1948, ch. 826, title I, §1, 62 Stat. 1240 , provided that: "This Act [enacting this chapter] may be cited as the 'War Claims Act of 1948'."
Repeals
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub. L. 89–554, Sept. 6, 1966, §8, 80 Stat. 632 , 655.
Transfer of Functions
For provisions transferring Foreign Claims Settlement Commission of the United States to Department of Justice, as a separate agency, see section 1622a et seq. of Title 22, Foreign Relations and Intercourse.
"Foreign Claims Settlement Commission" substituted in text for "War Claims Commission" pursuant to Reorg. Plan No. 1 of 1954, §§2, 4, eff. July 1, 1954, 19 F.R. 3985, 68 Stat. 1279, set out in the Appendix to Title 5, Government Organization and Employees, which abolished War Claims Commission, including offices of its members, and transferred functions of Commission and members, officers, and employees thereof to Foreign Claims Settlement Commission of the United States.
___________________________________--
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22 U.S. Code § 1621 - Definitions
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
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For the purposes of this subchapter—
(a)
The term “person” shall include an individual, partnership, corporation, or the Government of the United States.
(b)
The term “United States” when used in a geographical sense shall include the United States, its Territories and insular possessions, and the Canal Zone.
(c)
The term “nationals of the United States” includes (1) persons who are citizens of the United States, and (2) persons who, though not citizens of the United States, owe permanent allegiance to the United States. It does not include aliens.
(d)
The term “Yugoslav Claims Agreement of 1948” means the agreement between the Governments of the United States of America and of the Federal People’s Republic of Yugoslavia regarding pecuniary claims of the United States and its nationals, signed July 19, 1948.
(Mar. 10, 1950, ch. 54, title I, § 2, 64 Stat. 13; Aug. 9, 1955, ch. 645, §§ 1, 2, 69 Stat. 562.)
LII has no control over and does not endorse any external Internet site that contains links to or references LII.
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22 USC 1622g: Independence of Foreign Claims Settlement Commission of the United States; finality of Commission decisions Text contains those laws in effect on June 23, 2017
From Title 22-FOREIGN RELATIONS AND INTERCOURSECHAPTER 21-SETTLEMENT OF INTERNATIONAL CLAIMSSUBCHAPTER I-GENERAL PROVISIONS
Jump To: Source CreditReferences In TextCodificationEffective Date
§1622g. Independence of Foreign Claims Settlement Commission of the United States; finality of Commission decisions
Nothing in this Act shall be construed to diminish the independence of the Commission in making its determinations on claims in programs that it is authorized to administer pursuant to the powers and responsibilities conferred upon the Commission by the War Claims Act of 1948, as amended [50 U.S.C. 4101 et seq.], the International Claims Settlement Act of 1949, as amended [22 U.S.C. 1621 et seq.], and Reorganization Plan Numbered 1 of 1954. The decisions of the Commission with respect to claims shall be final and conclusive on all questions of law and fact, and shall not be subject to review by the Attorney General or any other official of the United States or by any court by mandamus or otherwise.
( Pub. L. 96–209, title I, §107, Mar. 14, 1980, 94 Stat. 97 .)
References in Text
This Act, referred to in text, is Pub. L. 96–209, Mar. 14, 1980, 94 Stat. 96 , which enacted sections 1622a to 1622g of this title, amended section 5316 of Title 5, Government Organization and Employees, and section 4101 of Title 50, War and National Defense, and enacted provisions set out as notes under section 1622a of this title, section 363 of former Title 31, Money and Finance, and section 7546 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Tables.
The War Claims Act of 1948, as amended, referred to in text, is act July 3, 1948, ch. 826, 62 Stat. 1240 , as amended, which is classified generally to chapter 51 (§4101 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Tables.
The International Claims Settlement Act of 1949, as amended, referred to in text, is act Mar. 10, 1950, ch. 54, 64 Stat. 12 , as amended, which is classified generally to this chapter (§1621 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 1621 of this title and Tables.
Reorganization Plan Numbered 1 of 1954, referred to in text, is Reorg. Plan No. 1 of 1954, July 1, 1954, 19 F.R. 3985, 68 Stat. 1279, which is set out as a note under section 1622 of this title.
Codification
Section was not enacted as part of the International Claims Settlement Act of 1949 which comprises this chapter.
Effective Date
Section effective Mar. 14, 1980, see title VI of Pub. L. 96–209, set out as a note under section 1622a of this title.
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Federal Tort Claims Act
This memorandum is intended to familiarize Members, Officers and employees of the House generally with the Federal Tort Claims Act (“FTCA”) and the protections it provides. This memorandum is not intended, however, to answer all questions or issues that may arise. Therefore, we encourage you to contact the Office of General Counsel (“OGC”) immediately with any additional questions on this topic. OGC can only provide assistance to Members, Officers, and employees of the House. Persons who are employed by other federal government entities should call their entity or agency for assistance.
Under the FTCA, the federal government acts as a self-insurer, and recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The United States is liable to the same extent an individual would be in like circumstances. The statute substitutes the United States as the defendant in such a suit and the United States—not the individual employee—bears any resulting liability.
A. Making a Claim under the FTCA
Individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting in the scope of his or her official duties may file a claim with the government for reimbursement for that injury or damage. To state a valid claim, the claimant must demonstrate that (1) personal injury or property damage was by a federal government employee; (2) the employee was acting within the scope of his official duties; (3) the employee was acting negligently or wrongfully; and (4) the negligent or wrongful act proximately caused the injury or damage. The claimant must also provide documentation establishing that his claim satisfies all the elements of the FTCA.
A person wishing to make a claim for reimbursement under the FTCA for damage or injury caused by a House employee must first file an administrative claim with the House. OGC will provide a potential claimant with a claim form and inform him as to the required documentation. Please notify OGC immediately if an event occurs which you believe may give rise to an FTCA claim.
B. The FTCA in Lieu of a Certificate of Insurance
Members may be asked to provide a certificate of insurance for the purpose of entering into a district office lease or for securing space in which to conduct a town hall meeting or other official event. The House does not carry a private insurance policy and generally does not permit Members to use the MRA to pay for a private insurance policy for these types of meetings or events. OGC can provide a letter explaining the protections of the FTCA, and asking that the letter be accepted in lieu of a certificate of insurance.
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Note: All forms and letters are in Portable Document Format (PDF). Download a free PDF Reader.
From the General Counsel
Please call the Office of the General Counsel at 202-225-9700 to request these letters.
• Tax Exempt Letter
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• U.S. House of Representatives
Washington, DC 20515
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_____________________________________-
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Order Code 95-717
Federal Tort Claims Act
Updated December 11, 2007
Henry Cohen
Legislative Attorney
American Law Division
Vanessa K. Burrows
Legislative Attorney
American Law Division
Federal Tort Claims Act
Summary
The Federal Tort Claims Act is the statute by which the United States authorizes
tort suits to be brought against itself. With exceptions, it makes the United States
liable for injuries caused by the negligent or wrongful act or omission of any federal
employee acting within the scope of his employment, in accordance with the law of
the state where the act or omission occurred. Three major exceptions, under which
the United States may not be held liable, even in circumstances where a private
person could be held liable under state law, are the Feres doctrine, which prohibits
suits by military personnel for injuries sustained incident to service; the discretionary
function exception, which immunizes the United States for acts or omissions of its
employees that involve policy decisions; and the intentional tort exception, which
precludes suits against the United States for assault and battery, among some other
intentional torts, unless they are committed by federal law enforcement or
investigative officials.
This report discusses, among other things, the application of the Feres doctrine
to suits for injuries caused by medical malpractice in the military, the prohibition of
suits by victims of atomic testing, Supreme Court cases interpreting the discretionary
function exception, the extent to which federal employees may be held liable for torts
they commit in the scope of their employment, and the government contractor
defense to products liability design defect suits.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Feres Doctrine and Medical Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Discretionary Function Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Suits by Victims of Atomic Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Warner Amendment and the Radiation Exposure
Compensation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Intentional Tort Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Suits Against Federal Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Constitutional Torts: Federal Employees’ Liability
and Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Practical Side of Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Qualified Immunity to Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . . . 25
The Government Contractor Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
2 United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
3 The United States may be held liable under the FTCA for torts of employees of the
executive, legislative, and judicial branches, but not for torts of government contractors. 28
U.S.C. § 2671.
4 Another section of the FTCA provides that the United States shall be liable “in the same
manner and to the same extent as a private individual under like circumstances” (28 U.S.C.
§ 2674(a)), and the Supreme Court has noted that “like circumstances” are not limited to
“the same circumstances,” but include “analogous” circumstances. United States v. Olson,
546 U.S. 43, 47 (2005).
5 United States v. Olson, supra, note 4.
Federal Tort Claims Act
Introduction
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, is the
statute by which the United States authorizes tort suits to be brought against itself.
As a result of the common law doctrine of sovereign immunity, “the United States
cannot be sued without its consent.”1 “Congress alone has the power to waive or
qualify that immunity.”2 In 1946, by enacting the FTCA, Congress waived sovereign
immunity for some tort suits. With exceptions, it made the United States liable:
for injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).
Thus, the FTCA makes the United States liable for the torts of its employees3
to the extent that private employers are liable under state law for the torts of their
employees.4 The fact that state law would make a state or municipal entity — as
opposed to a private person — liable under like circumstances is not sufficient to
make the United States liable under the FTCA.5
The FTCA, however, contains exceptions under which the United States may
not be held liable even though a private employer could be held liable under state
law. Three of these exceptions are examined in separate sections of this report: the
Feres doctrine, which prohibits suits by military personnel for injuries sustained
CRS-2
6 Federal civilian employees covered by the Federal Employees’ Compensation Act, 5
U.S.C. §§ 8101 et seq., are also prohibited from suing under the FTCA for work-related
injuries. 5 U.S.C. § 8116(c).
7 The requirement in 28 U.S.C. § 1346(b) that liability be based on a “negligent or wrongful
act or omission” has been construed to preclude strict liability. See, Dalehite v. United
States, 346 U.S. 15, 44-45 (1953). However, the National Swine Flu Immunization Program
of 1976, P.L. 94-380, made the United States liable for injuries arising out of the
administration of the swine flu vaccine to the extent that manufacturers would be liable
under state law “including negligence, strict liability in tort, and breach of warranty.”
8 In Molzof v. United States, 502 U.S. 301 (1992), the Supreme Court held that damages for
future medical expenses and loss of enjoyment of life for a veteran in a permanent
vegetative state as a result of government hospital employees’ negligence were not
“punitive” and therefore could be awarded. The government had argued that these damages
were punitive rather than compensatory in nature because the award for future medical
expenses duplicated free medical services already being provided by the veterans’ hospital,
and the award for loss of enjoyment of life cannot redress a comatose patient’s uncognizable
loss. The Court held, however, “that § 2674 bars the recovery only of what are legally
considered ‘punitive damages’ under traditional common-law principles.” Id. at 312
(emphasis in original).
9 Subsequent exceptions cited in the sentence also appear in 28 U.S.C. § 2680.
10 In Dolan v. United States Postal Service, 546 U.S. 481 (2006), the Supreme Court held
that the postal exception is inapplicable to a claim that mail left on the plaintiff’s porch
caused her to trip and fall, just as it is inapplicable to the negligent operation of postal motor
vehicles. “Congress intended to retain immunity,” the Court wrote, “only for injuries
arising, directly or consequentially, because mail either fails to arrive at all or arrives late,
in damaged condition, or at the wrong address.” Id. at 489. Losses of this type, the Court
added, “are at least to some degree avoidable or compensable through postal registration and
insurance.” Id. at 490.
11 Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, P.L. 100-647,
authorizes taxpayers to sue the United States if “any officer or employee of the Internal
Revenue Service recklessly or intentionally disregards” any provision of the Internal
Revenue Code, and to recover up to $100,000 in “actual, direct economic damages”
sustained as a result of such action. 26 U.S.C. § 7433.
12 In Smith v. United States, 507 U.S. 197, 198 (1993), the Supreme Court held that
Antarctica is a foreign country for this purpose even though it is “a sovereignless region
without civil tort law of its own.” In Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004),
the Supreme Court held “that the FTCA’s foreign country exception bars all claims based
on any injury suffered in a foreign country, regardless of where the tortious act or omission
(continued...)
incident to service;6 the discretionary function exception; and the intentional tort
exception. Among the other exceptions, the United States may not be held liable in
accordance with state law imposing strict liability;7 it may not be held liable for
interest prior to judgment or for punitive damages (28 U.S.C. § 2674);8 for the act or
omission of an employee exercising due care in the execution of an invalid statute or
regulation (28 U.S.C. § 2680);9 for claims “arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter”;10 for claims arising in respect of
the assessment or collection of any tax11 or customs duty; for claims caused by the
fiscal operations of the Treasury or by the regulation of the monetary system; for
claims arising out of combatant activities; or for claims arising in a foreign country.12
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12 (...continued)
occurred.” The plaintiff’s suit therefore was dismissed even though his “abduction in
Mexico was the direct result of wrongful acts of planning and direction by DEA agents
located in California.” Id. at 702. The Court was unwilling to adopt the “headquarters
doctrine” because “it will virtually always be possible to assert that the negligent activity
that injured the plaintiff [abroad] was the consequence of faulty training, selection or
supervision — or even less than that, lack of careful training, selection or supervision — in
the United States.” Id.
13 In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court disallowed a suit
because the claimant had not first filed an administrative claim, even though the claimant
was a prisoner without legal counsel and had filed an administrative claim (later denied)
only four months after filing suit, before any substantial progress in the litigation had
occurred.
14 A claim accrues under the FTCA when “the plaintiff has discovered both his injury and
its cause.” United States v. Kubrick, 444 U.S. 111, 120 (1979). This rule benefits, among
others, plaintiffs with latent diseases that are not discovered until years after exposure to a
hazardous substance. See also, Sinclair and Szypszak, Limitations of Action Under the
FTCA: A Synthesis and Proposal, 28 Harvard Journal on Legislation 1 (1991); Annotation,
Statute of Limitations Under Federal Tort Claims Act (28 USCS § 2401(b)), 29 ALR Fed
482.
15 Pascale v. United States, 998 F.2d 186 (3d Cir. 1993).
16 See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh
Amendment Right, 58 Texas Law Review 549 (1980).
17 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; 38 U.S.C. § 515. There appears to
be no general limit on settlements effected with the prior written approval of the Attorney
General or his designee. A limit applicable to the Department of Justice in non-FTCA
situations is noted in footnote 44 of this report.
18 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; see also, 38 U.S.C. § 515.
19 28 C.F.R. § 0.168(d)(2); see, Lester Jayson and Robert Longstreth, HANDLING FEDERAL
TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES, § 15.05[1]. The Attorney
General has delegated the authority to settle tort claims of up to $200,000 to the Secretary
(continued...)
Prior to filing suit under the FTCA, a claimant must present his claim to the
federal agency out of whose activities the claim arises. 28 U.S.C. § 2675.13 This
must be done within two years after the claim accrues. 28 U.S.C. § 2401.14 If, within
six months after receiving a claim, the agency mails a denial of the claim to the
claimant, then the claimant has six months to file suit in federal district court. 28
U.S.C. §§ 2401, 2675. No period of limitations applies to a plaintiff if the agency
fails to act within six months after receiving his claim.15 Suits under the FTCA are
tried without a jury. 28 U.S.C. § 2402.16
An agency may not settle a claim for more than $25,000 without the prior
written approval of the Attorney General or his designee, unless the Attorney General
delegates to the head of the agency the authority to do so.17 “Such delegations may
not exceed the authority delegated by the Attorney General to United States attorneys
to settle claims for money damages against the United States.”18 United States
attorneys are authorized to settle claims in amounts up to $1 million.19 Settlements
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19 (...continued)
of Veterans Affairs, the Postmaster General, and the Secretary of Defense, and of up to
$100,000 to the Secretary of Transportation. 28 C.F.R. Part 14, App.
20 See, Annotation, Calculations of Attorneys’ Fees Under Federal Tort Claims Act — 28
USCS § 2678, 86 ALR Fed 866. A California statute that limited the amount of attorneys’
fees that may be charged a client in a medical malpractice action was held to be preempted
to the extent that it would apply in an action brought under the FTCA. Jackson v. United
States, 881 F.2d 707 (9th Cir. 1989).
21 The pertinent part of this provision, which is part of the Equal Access to Justice Act,
states: “The United States shall be liable for such fees [i.e., reasonable attorneys’ fees] and
expenses to the same extent that any other party would be liable under the common law or
under the terms of any statute which specifically provides for such an award.” No statute
provides for fee awards under FTCA, and another part of the Equal Access to Justice Act,
which authorizes fee awards against the United States in some instances where other parties
would not be liable for fee awards, does not apply to “cases sounding in tort.” 28 U.S.C.
§ 2412(d)(1)(A). However, under the common law, parties other than the United States may
be held liable for attorneys’ fees when they act in bad faith. Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240, 258-259 (1975).
In Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989), the court found a lack of the
requisite bad faith and therefore did “not reach the issue whether an award of attorneys fees
would . . . be barred by the FTCA prohibition against punitive damages [28 U.S.C. § 2674].”
Subsequently, however, in Molzof v. United States, supra, note 8, the Supreme Court, in a
different context, held “that § 2674 bars the recovery only of what are legally considered
‘punitive damages’ under traditional common-law principles.”
of $2,500 or less shall be paid by the agency out of appropriations available to the
agency; settlements of more than $2,500 shall be paid from general revenues. 28
U.S.C. § 2672.
Attorneys who represent claimants under the FTCA may not charge claimants
more than 25 percent of a court award or a settlement made by the Attorney General
or his designee after suit is filed, or more than 20 percent of a settlement made by the
agency with whom a claim is filed. 28 U.S.C. § 2678.20 A court may not order the
United States to pay a claimant’s attorneys’ fees unless the court finds the United
States to have acted in bad faith. 28 U.S.C. § 2412(b).21
The Feres Doctrine and Medical Malpractice
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court unanimously
held that, although the FTCA contains no explicit exclusion for injuries sustained by
military personnel incident to service, such an exclusion results from construing the
act “to fit, so far as will comport with its words, into the entire statutory scheme of
remedies against the Government to make a workable, consistent and equitable
whole.” 340 U.S. at 139. One reason the Court found that to prohibit recovery for
injuries sustained incident to service would fit the entire statutory scheme was that
the act, at 28 U.S.C. § 2674, makes the United States liable only “to the same extent
as a private individual under like circumstances.” This limitation could be construed
to exclude service-connected injuries because, the Court found,
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that plaintiffs can point to no liability of a “private individual” even remotely
analogous to that which they are asserting against the United States. We know
of no American law which ever has permitted a soldier to recover for negligence,
against either his superior officers or the Government he is serving. Nor is there
any liability “under like circumstances,” for no private individual has power to
conscript or mobilize a private army with such authorities over persons as the
Government vests in echelons of command.
340 U.S. at 141-142.
Another basis for the Court’s decision in Feres was that the act makes “the law
of the place where the act or omission occurred” (28 U.S.C. § 1346(b)) govern
liability, yet, in the case of a soldier, who is not free to choose his habitat, “[t]hat the
geography of an injury should select the law to be applied to his tort claims makes
no sense.” Id. at 143. The Court also was influenced by the fact that Congress has
enacted laws that “provide systems of simple, certain, and uniform compensation for
injuries or death of those in armed services,” yet Congress made no provision as to
how recovery under the FTCA would affect entitlement to such compensation. “The
absence of any such adjustment is persuasive that there was no awareness that the act
might be interpreted to permit recovery for injuries incident to military service.” Id.
at 144. The Court concluded:
that the Government is not liable under the Federal Tort Claims Act for injuries
to servicemen where the injuries arise out of or are in the course of activity
incident to service. Without exception, the relationship of military personnel to
the Government has been governed exclusively by federal law. We do not think
that Congress, in drafting the Act, created a new cause of action dependent on
local law for service-connected injuries or death due to negligence. We cannot
impute to Congress such a radical departure from established law in the absence
of express congressional command.
340 U.S. at 146.
In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-672
(1977), the Supreme Court identified three rationales as the foundation for the Feres
doctrine:
First, the relationship between the Government and members of its Armed Forces
is “‘distinctively federal in character,’”. . . ; it would make little sense to have the
Government’s liability to members of the Armed Services depend on the fortuity
of where the soldier happened to be stationed at the time of the injury.
Second, the Veterans’ Benefits Act establishes as a substitute for tort liability,
a statutory “no fault” compensation scheme which provides generous pensions
to injured servicemen, without regard to any negligence attributable to the
Government.
A third factor was explicated in United States v. Brown, 348 U.S. 110, 112
(1954), namely, “[t]he peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of such suits on discipline, and the
extreme results that might obtain if suits under the Tort Claims Act were allowed
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22 804 F.2d 561 (9th Cir. 1986), modified, 813 F.2d 1006 (9th Cir. 1987), withdrawn, 825 F.2d
202 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988).
for negligent orders given or negligent acts committed in the course of military
duty. . . .”
The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer,
473 U.S. 52 (1985), and again addressed the reasons for its adoption. “Feres seems
best explained,” the Court wrote:
“by the ‘peculiar and special relationship of the soldier to his superiors, the
effects of the maintenance of such suits on discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were allowed for negligent
orders given or negligent acts committed in the course of military duty.’” The
Feres doctrine cannot be reduced to a few bright-line rules; each case must be
examined in light of the statute as it has been construed in Feres and subsequent
cases.
473 U.S. at 57 (citations omitted).
The Court emphasized that significant factors in determining whether the Feres
doctrine bars a suit are “whether the suit requires the civilian court to second-guess
military decisions . . . and whether the suit might impair military discipline.” Id. at
57. It noted that “other factors mentioned in Feres” are “no longer controlling.” Id.
at 58 n.4. These other factors apparently were the distinctively federal nature of the
relationship between the government and military personnel, and the alternative
compensation system available to military personnel. Subsequently, however, in
United States v. Johnson, 481 U.S. 681 (1987), discussed below, the Court
reaffirmed these factors.
In Atkinson v. United States,22 a panel of the United States Court of Appeals for
the Ninth Circuit, relying primarily on Shearer, allowed a medical malpractice suit
to be brought under the FTCA by a servicewoman who suffered injuries “incident to
service” in an Army hospital. The government sought a rehearing, and, in the
interim, the Supreme Court decided United States v. Johnson, supra, which caused
the Ninth Circuit’s panel to grant the rehearing and issue a new opinion in Atkinson,
reversing itself. The Supreme Court subsequently declined to review the case. These
three decisions — the panel’s first decision in Atkinson, Johnson, and the panel’s
second decision in Atkinson — are now examined in turn.
The plaintiff in Atkinson alleged that negligence on the part of Army hospital
personnel had caused her to deliver a stillborn child and to suffer physical and
emotional injuries. The panel, in its first decision, wrote:
[T]he Feres doctrine bars suit only where a civilian court would be called upon
to second-guess military decisions or where the plaintiff’s admitted activities are
of the sort that would directly implicate the need to safeguard military discipline.
. . . In Shearer, the Supreme Court also confirmed that courts should take a
case-by-case, rather than per se, approach to claims [by the government] of
immunity.
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23 The three original reasons Justice Scalia referred to were that “the parallel private liability
required by the FTCA was absent” and the first two reasons mentioned in Stencel; the
“military discipline” rationale was the third reason mentioned in Stencel.
804 F.2d at 563. Taking such an approach, the court wrote:
At the time Atkinson sought treatment, she was “not subject in any real way to the
compulsion of military orders or performing any sort of military mission.” . . . No command
relationship exists between Atkinson and her attending physician. No military
considerations govern the treatment in a non-field hospital of a woman who seeks to have
a healthy baby. No military discipline applies to the care a conscientious physician will
provide in this situation. . . . There is simply no connection between Atkinson’s medical
treatment and the decisional or disciplinary interest protected by the Feres doctrine.
Id. at 564-565.
Note that this decision did not hold that all military malpractice suits are exempt
from the Feres doctrine. In taking a case-by-case approach, the court allowed for the
possibility of a situation in which there is a connection between a serviceman or
servicewoman’s “medical treatment and the decisional or disciplinary interest
protected by the Feres doctrine.”
In 1987, in United States v. Johnson, supra, the Supreme Court, in a 5-to-4
decision, held that the Feres doctrine bars suits on behalf of military personnel
injured incident to service even in cases of torts committed by employees of civilian
agencies. The plaintiff in Johnson was the widow of a serviceman killed incident to
service in a helicopter crash allegedly caused by the negligence of the Federal
Aviation Administration. Reexamining the reasons for the Feres doctrine, the Court
concluded that whether the tortfeasor was a civilian or a military employee was not
significant. The reasons for the Feres doctrine that it reexamined, and reaffirmed,
were the three cited in Stencel, set forth on page 5 of this report. Thus, it removed
any doubts that it had cast in Shearer upon the significance of those factors.
Justice Scalia, joined by three other justices in dissent, noted that the Feres
doctrine is not in the FTCA as enacted by Congress, and found the reasons offered
by the Court for adopting the doctrine to be unsatisfactory:
[N]either the three original Feres reasons nor the post hoc rationalization of
“military discipline” justifies our failure to apply the FTCA as written. Feres
was wrongly decided and heartily deserves the “widespread, almost universal
criticism” it has received.
481 U.S. at 700.23
Citing Johnson, the Ninth Circuit’s panel subsequently reversed itself in
Atkinson:
Significant for our purposes [the panel wrote] is the Court’s articulation, with
apparent approval, of all three rationales associated with Feres. . . . Simply put,
Johnson appears to breathe new life into the first two Feres rationales, which
until that time had been largely discredited and abandoned. . . . Although we
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24 The three rationales referred to are those cited in Stencel and by the majority in Johnson.
25 833 F.2d at 286 (citing Shearer, 473 U.S. at 56, and adding emphasis).
believe that the military discipline rationale does not support application of the
Feres doctrine in this case, the first two rationales support its application. . . .
We are . . . reluctant to carve out an exception to Feres after five members of the
Court appear to have emphatically endorsed Feres and all three of its rationales.
That task, if it is to be undertaken at all, is properly left to the Supreme Court or
to Congress.
825 F.2d at 205-206.24
In Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987), a servicewoman who
had given birth to twins brought a medical malpractice suit under the FTCA, alleging
that, as a result of negligent prenatal care at a military hospital, one of her twins
suffered bodily injury and the other died. The Eleventh Circuit held that the Feres
doctrine, as interpreted in Johnson, barred her claim. It agreed with the Ninth
Circuit’s second decision in Atkinson that the first two Feres factors operated to
preclude suit, but, unlike the Ninth Circuit, believed that even the third factor did so.
“Obviously,” the court wrote, “the suit ‘might impair essential military discipline’
. . . .”25
In Irvin v. United States, 845 F.2d 126 (6th Cir. 1988), cert. denied, 488 U.S. 975
(1988), another servicewoman alleged that negligent prenatal care by the military had
resulted in her infant’s death, and another court of appeals held that the Feres
doctrine barred suit under the FTCA.
In Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), the court held that the
Feres doctrine precludes an individual from recovering for medical malpractice
allegedly committed at his pre-induction physical. Although the plaintiff was not a
service member at the time of the alleged negligence, and was not eligible for either
veterans’ benefits or treatment in a military hospital, the court found that two of the
three Feres rationales spelled out in Johnson were applicable: “the relationship
between Bowers and the armed forces is distinctively federal,” and a decision for
Bowers “would have a direct effect upon military judgments and decisions.” Id. at
452.
Thus, the Feres doctrine stands and contains no exception for medical
malpractice cases. Because the first two Stencel factors — the federal nature of the
relationship between the government and military personnel, and the alternative
compensation scheme — would seem to apply in every case, there may not even be
occasion for courts to use the case-by-case approach of Shearer. This could change,
however, as a result of action by either the Supreme Court or Congress.
As for the Supreme Court, it is not beyond the realm of possibility that it could
completely overrule Feres. In Johnson, as noted, the four dissenting justices said that
Feres had been wrongly decided, and even downplayed the significance of the fact
that Congress since 1950 has not overturned Feres. 481 U.S. at 702 (Scalia, J.,
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26 See, e.g., Medical Malpractice Suits for Armed Services Personnel: Hearings on S. 2490
and H.R. 1054 Before the Subcomm. on Courts and Administrative Practice of the Senate
Comm. on the Judiciary, 100th Cong., 2nd sess. (1988).
27 Congress has provided that the discretionary function exception does not apply in any
action based upon the act or omission of a participant in the swine flu immunization
program. P.L. 94-380; see also, note 7, supra. Congress has also provided that the
exception does not apply to certain claims based upon gross negligence by employees of the
Consumer Product Safety Commission. 15 U.S.C. § 2053(h)(1)(B).
dissenting). As for Congress, some Members in the past have shown interest in
amending the Feres doctrine to the extent of authorizing medical malpractice suits.26
Although Feres was an interpretation of the FTCA, it has been applied to bar
suits against the United States under other statutes, including the Privacy Act.
Cummings v. Department of Navy, 116 F. Supp.2d 76 (D.D.C. 2000).
The application of the Feres doctrine to spouses and children of military
personnel is discussed below, at the beginning of the section on “Suits by Victims of
Atomic Testing.”
The Discretionary Function Exception
The discretionary function exception is the most significant exception to
government liability that is explicitly provided for in the FTCA. This exception
immunizes the United States from claims “based upon the exercise or performance
or the failure to exercise or perform a discretionary function.” 28 U.S.C. § 2680(a).
It precludes liability even if a federal employee acted negligently in the performance
or nonperformance of his discretionary duty.27 In Dalehite v. United States, 346 U.S.
15 (1953), the Supreme Court said that the discretion protected by the exception:
is the discretion of the executive or administrator to act according to one’s
judgment of the best course. . . . It . . . includes more than the initiation of
programs and activities. It also includes determinations made by executives or
administrators in establishing plans, specifications or schedules of operations.
Where there is room for policy judgment and decision there is discretion. It
necessarily follows that acts of subordinates in carrying out the operations of
government in accordance with official directions cannot be actionable.
Id. at 34, 35-36 (footnotes omitted).
In United States v. Varig Airlines, 467 U.S. 797 (1984), victims of airplane
accidents alleged that the Federal Aviation Administration (FAA) had acted
negligently in certifying certain airplanes for operation. The FAA had established a
program of “spot-checking” manufacturers’ compliance with minimum safety
standards, and had certified the airplanes involved in the accidents without inspecting
them. The Supreme Court, applying the principles it had set forth in Dalehite, held:
Here, the FAA has determined that a program of “spot-checking” manufacturers’
compliance with minimum safety standards best accommodates the goal of air
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28 More generally, the Court noted:
As in Dalehite, it is unnecessary — and indeed impossible — to define with
precision every contour of the discretionary function exception. From the
legislative and judicial materials, however, it is possible to isolate several factors
useful in determining when the acts of a Government employee are protected
from liability by § 2680(a). First, it is the nature of the conduct, rather than the
status of the actor, that governs whether the discretionary function exception
applies in a given case. . . . Second, whatever else the discretionary function
exception may include, it plainly was intended to encompass the discretionary
acts of the Government acting in its role as a regulator of the conduct of private
individuals.
467 U.S. at 813-814.
transportation safety and the reality of finite agency resources. Judicial
intervention in such decisionmaking through private tort suits would require the
courts to “second-guess” the political, social, and economic judgments of an
agency exercising its regulatory function. . . . It follows that the acts of FAA
employees in executing the “spot-check” program in accordance with agency
directives are protected by the discretionary function exception as well. . . . The
FAA employees who conducted compliance reviews of the aircraft involved in
this case were specifically empowered to make policy judgments.
Id. at 820.28
In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court held that
the United States could be held liable under the FTCA, because the plaintiffs had
proved that federal employees had failed to follow regulations that specifically
prescribed a course of action. The plaintiffs were an infant, who had contracted a
severe case of polio from a dose of Orimune, an oral polio vaccine, and his parents.
They claimed that the Division of Biologic Standards, then a part of the National
Institutes of Health, had violated a federal statute and accompanying regulations in
issuing a license to a vaccine manufacturer to produce Orimune, and that the Bureau
of Biologics of the Food and Drug Administration had violated federal regulations
in approving the release of the particular lot that contained the dose that injured the
infant. The regulatory scheme governing licensing in Berkovitz, unlike the one
challenged in Varig, did not permit spot-checking; it required the agency, “prior to
issuing a product license, to receive all data the manufacturer is required to submit,
examine the product, and make a determination that the product complies with safety
standards.” Id. at 542. The regulatory scheme governing release of vaccine lots
apparently would have given the agency the power to establish a spot-checking
program as was used in Varig. However, the plaintiffs alleged that the agency had
“adopted a policy of testing all vaccine lots for compliance with safety standards and
preventing the distribution to the public of any lots that fail to comply. [Plaintiffs]
further allege that notwithstanding this policy, which allegedly leaves no room for
implementing officials to exercise independent policy judgment, employees of the
Bureau knowingly approved a lot that did not comply with safety standards.” Id. at
547. The Court sent the case back for trial, holding that if these allegations were
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29 More generally, the Court held that, in determining the applicability of the discretionary
function exception,
a court must first consider whether the action is a matter of choice for the acting
employee. . . . [C]onduct cannot be discretionary unless it involves an element
of judgment or choice. . . . Thus, the discretionary function exception will not
apply when a federal statute, regulation, or policy specifically prescribes a course
of action for an employee to follow. In this event, the employee has no rightful
option but to adhere to the directive. . . . The [discretionary function] exception
. . . protects only governmental actions and decisions based on considerations of
public policy.
486 U.S. at 536-537.
proved, then the discretionary function exception would not bar the claim.29 The
Court thus rejected the view expressed by the court below “that the discretionary
function exception exempts the United States from claims based on . . . nondiscretionary
operational level acts and omissions taken in furtherance of planning
level discretionary decisions.” 822 F.2d 1322, 1329 (3d Cir. 1987).
In United States v. Gaubert, 499 U.S. 315 (1991), the Court held that the
discretionary function exception barred suit against the United States for the activities
of federal bank regulators in connection with a failing savings and loan association,
the Independent American Savings Association (IASA). The regulators became
“involved in IASA’s day-to-day business. They recommended the hiring of a certain
consultant to advise IASA on operational and financial matters; they advised IASA
concerning whether, when, and how its subsidiaries should be placed into
bankruptcy; they mediated salary disputes; they reviewed the draft of a complaint to
be used in litigation; they urged IASA to convert from state to federal charter; and
they actively intervened when the Texas Savings and Loan Department attempted to
install a supervisory agent at IASA.” Id. at 319-320.
The plaintiff, who was IASA’s chairman of the board and largest shareholder,
alleged that these activities were performed negligently and cost him $100 million
in damages. The United States argued that, even if the regulators’ activities had been
performed negligently, the discretionary function exception precluded recovery. The
court of appeals found that only some of the regulators’ activities were protected by
the discretionary function exception: while “policy decisions” fall within the
exception, “operational actions” do not. Id. at 321. The Supreme Court disagreed:
A discretionary act is one that involves choice or judgment; there is nothing in
that description that refers exclusively to policy-making or planning functions.
Day-to-day management of banking affairs, like the management of other businesses,
regularly require[s] judgment as to which of a range of permissible
courses is the wisest.
Id. at 325.
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30 The Court noted that some discretionary acts are not protected by the discretionary
function exception because they are not “based on the purposes that the regulatory regime
seeks to accomplish.” If an official engaged in an act protected by the discretionary function
exception drove an automobile in connection with that act and negligently caused an
accident, the exception would not apply. “Although driving requires the constant exercise
of discretion, the official’s decisions in exercising this discretion can hardly be said to be
grounded in regulatory policy.” Id. at 325 n.7.
31 Jayson and Longstreth, supra, note 19, § 5A.09 (footnotes omitted). See, Annotation,
Right of Member of Family of Serviceman to Maintain Action Under Federal Tort Claims
Act (28 USCS §§ 1346(b), 2671-2680) Against United States Based Upon Injuries Sustained
By Serviceman While on Active Duty, 69 ALR Fed 949.
32 E.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S. 1023
(1984) (barring a suit for the soldier’s spouse’s miscarriages and children’s birth defects
where these injuries were caused by chromosomal damages resulting from “the Army’s
negligent exposure of their husband and father to harmful levels of radiation in the course
of his former military service,” id. at 98 n.2). The court stated that it sensed the “injustice”
of the result, but that it has “no legal authority, as an intermediate appellate court, to decide
the case differently.” Id. at 97.
The discretionary function exception thus applies to decisions based on policy,
whether made at the policy or planning level, on the one hand, or at the operational
level, on the other.30
Suits by Victims of Atomic Testing
From 1946 to 1962, approximately 235 tests of atomic weapons were performed
by federal government contractors. Many military and civilian personnel who
participated in these tests claim to have suffered cancer and other long-term medical
injuries as a result. Current federal law generally precludes either military or civilian
personnel from recovering in tort against either the federal government or the
contractors in these cases.
Military personnel are barred from recovering against the United States because
of the Feres doctrine. “The doctrine of the Feres case does not apply to the spouse
or child of a serviceman insofar as their own injuries or death are concerned . . . .
Conversely, the Feres doctrine clearly bars a suit by a serviceman’s next of kin for
damages resulting from the death or of injuries to the serviceman if his death or
injuries are incident to service.”31 The distinction is between a spouse’s or child’s
injury that is caused directly by the military and a spouse’s or child’s injury that
results from the soldier’s service-connected injury: the former is recoverable but the
latter is not. Thus, courts of appeals have held that the Feres doctrine bars spouses
of soldiers from recovering for their own injuries where such injuries resulted from
the soldiers’ injuries that were caused by the soldiers’ having been ordered into
nuclear blast areas.32
Similarly, courts of appeals have held that the Feres doctrine bars recovery by
children born with birth defects that resulted from genetic changes in their fathers
CRS-13
33 Id.
34 Broudy v. United States, 722 F.2d 566, 570 (9th Cir. 1983).
35 Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I.
1982).
that occurred when they were exposed to radiation while on military duty.33
However, “the Feres doctrine does not bar an action against the United States for a
service-related injury suffered by a veteran as a result of independent post-service
negligence,” such as failure of the government to warn or monitor a veteran who had
been exposed to radiation.34 A district court has held that the Feres doctrine does not
bar suit by the daughter and grandson of a soldier who was the victim of such
negligence.35
Civilians have also been denied recovery against the United States for injuries
caused by atomic testing — denied it on the basis of the discretionary function
exception to the FTCA. (This exception applies to all plaintiffs, so even if the Feres
doctrine were overturned, military personnel would be barred from recovering to the
same extent as civilians in atomic testing cases.) The Supreme Court has not
considered the applicability of the discretionary function exception to atomic testing
cases, but it has declined to review two federal courts of appeals decisions that held
that the discretionary function exception bars recovery in such cases.
In In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d
982, 993 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988), the court of appeals stated
that “Dalehite is squarely on point.” In both In re Consolidated and Dalehite, “a
detailed and extensive Operation Plan was adopted on orders from the highest levels
of the Executive Department. An integral part of that Plan was an extensive Safety
Plan. . . .” Id. at 994. The plaintiffs in In re Consolidated argued that the negligent
failure of Atomic Energy Commission and military officials to follow safety
guidelines established in the plan, such as decontamination measures and the use of
protective clothing and gear, had resulted in the overexposure of many hundreds or
thousands of test participants. The Ninth Circuit held:
The Safety Plan incorporated into the Operation Plan contemplated that
judgments and decisions concerning exposure to radiological hazards and the
degree of protection to be afforded would be made in light of the objectives and
the needs of the test program. Safety decisions, therefore, were part of the policy
decisions made in the conduct of the weapons tests, [ ] and they fall squarely
within the articulation in Dalehite that
[w]here there is room for policy judgment and decision there is
discretion.
Id. at 995, citing 346 U.S. at 36.
The plaintiffs also argued that the government had been negligent in failing to
warn the plaintiffs “of the dangers to which they had been exposed or to monitor test
participants for health problems resulting from radiation exposure.” 820 F.2d at 996.
The court held:
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36 Id. at 996-998 (quoting the district court’s opinion). The court’s reference to the levels
of government at which decisions were made should be read in the light of the following
language from the Supreme Court’s decision in Varig (already quoted in footnote 27 of this
report), which the court in In re Consolidated had itself quoted earlier in its opinion (820
F.2d at 995): “it is the nature of the conduct, rather than the status of the actor, that governs
whether the discretionary function exception applies in a given case.”
This is not a case of failing to warn river users of hidden obstructions beneath the
surface; or park users of the risk of flash floods; or a treating physician of his
patient’s dangerous propensities. The kind of “warning” that these [atomic
testing] cases involve . . . entailed a commitment of substantial resources,
including the assignment of a large number of employees and the expenditure of
large sums of money. . . . The program required difficult judgments balancing
the magnitude of the risk from radiation exposure — of which there was only
fragmentary knowledge — against the risks and burdens of a public program.
Those risks included the potential consequences of creating public anxiety and
the health hazards inherent in the medical responses to the warning.
Thus, any decision whether to issue warnings to thousands of test participants . . .
calls for the exercise of judgment and discretion at the highest levels of
government. . . .
The conclusion is inescapable that every aspect of a warning program is a matter
that falls within the discretionary function exception as defined in Dalehite and
Varig. . . .36
In Allen v. United States, 816 F.2d 1417 (10th Cir. 1987), cert. denied, 484 U.S.
1004 (1988), the Tenth Circuit, two months earlier, had reached the same conclusion
as the Ninth Circuit reached in In re Consolidated. The plaintiffs in Allen “singled
out the alleged failure of the government . . . to fully monitor offsite fallout exposure
and to fully provide needed public information on radioactive fallout.” 816 F.2d at
1419. They contended that these activities did not involve “the kind of policy
judgments protected by” the discretionary function exception. 816 F.2d at 1421. The
court disagreed:
In the case before us, as in Varig, the government actors had a general statutory
duty to promote safety; this duty was broad and discretionary. In the case before
us it was left to the AEC, as in Varig it was left to the Secretary of
Transportation and the FAA, to decide exactly how to protect public safety. . . .
In the instant case, no evidence was presented of any act or omission of the AEC
or its employees that clearly contravened a specific statutory or regulatory
authority. There was no evidence, for example that the Test Information Officer
failed to give out, or that the Radsafe Officer failed to take a specific radiation
measurement that had been decided upon. Plaintiffs’ entire case rests on the fact
that the government could have made better plans. This is probably correct, but
it is insufficient for FTCA liability.
Id. at 1421, 1424.
The Warner Amendment and the Radiation Exposure
Compensation Act. Military and civilian victims of atomic testing have also
sought to sue the government contractors involved in the testing. Under state tort
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37 See, Prosser and Keeton, THE LAW OF TORTS (5th ed. 1984) § 79, p. 558.
38 This provision was repealed and re-enacted (as the Atomic Testing Liability Act, 42
U.S.C. § 2210 note) by sections 3140 and 3141 of P.L. 101-510. This, according to the
accompanying conference report, was “in order to recodify this section together with the
revised Radiation Exposure Compensation Act. The conferees do not intend for this action
to have any effect whatsoever on pending or past cases involving this provision of law.”
H.Rept. 101-923, 101st Cong., 2nd sess. 763 (1990); reprinted in 1990 U.S.C.C.A.N. 3270.
39 The reason for the Warner Amendment was that the government contractors —
provided scientific, engineering and technical support for nuclear tests carried
out by the government and for the government in the exercise of a governmental
function, i.e., providing for the national defense. These organizations did not
order the tests to be performed; they did not set the times or places for the tests;
nor did they direct military or civilian government personnel to participate in
them. It should appear, without question, that these contractors were acting as
the de facto instruments of the United States Government in carrying out a
governmental purpose.
In the litigious atmosphere that now pervades the United States, especially where
atomic energy matters are concerned, literally thousands of plaintiffs have filed
suits against the operators of the government laboratories that have participated
in the government’s nuclear weapons tests. . . . Plaintiffs are seeking tens of
billions of dollars in damages. Because the contractors are fully indemnified by
the government under the terms of their contracts, the taxpayer will ultimately
bear this burden.
S.Rept. 98-500, 98th Cong., 2nd sess. 376 (1984). Although the contractors were indemnified,
Congress has nevertheless perceived these lawsuits to constitute a threat to the
continued participation of the private contractors in the nuclear weapons program
because the contractors fear the bad publicity generated by the suits.
Hammond v. United States, 786 F.2d 8, 14 (1st Cir. 1986).
law, a company engaged in atomic testing would likely be subject to strict liability
(liability even in the absence of negligence) for injuries resulting from such testing,
as atomic testing is an “abnormally dangerous” activity.37 Federal law, however, bars
victims of atomic testing from suing federal government contractors. Section 1631
of P.L. 98-525, 42 U.S.C. § 2212 (known as the “Warner Amendment”),38 provides
that an action against the United States under the FTCA shall be the exclusive
remedy for injuries “due to exposure to radiation based on acts or omissions by a
contractor in carrying out an atomic weapons testing program under a contract with
the United States.” Under this provision, a contractor’s employees shall be
considered federal employees for purposes of any lawsuit.39
Thus, the Warner Amendment makes suits against the United States under the
FTCA the exclusive remedy for claims based on atomic testing injuries. This
remedy, however, is illusory, because the Feres doctrine precludes recovery by
military personnel and the discretionary function exception precludes recovery by
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40 H.Rept. 99-567, 99th Cong., 2nd sess. 3 (1986), states that “the real effect of the Warner
Amendment is to leave the harmed individuals with no remedy at all.”
41 In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.
1987), cert. denied, 485 U.S. 905 (1988); Hammond v. United States, 786 F.2d 8 (1st Cir.
1986).
42 H.Rept. 101-923, 101st Cong., 2nd sess. 762 (1990); reprinted in 1990 U.S.C.C.A.N. 3269.
43 There are other exceptions to the intentional tort exception. The United States may be
held liable for “misrepresentation or deceit on the part of the [Consumer Product Safety]
Commission or any employee thereof. . . .” 15 U.S.C. § 2053(h)(1)(A). (The CPSC is also
the subject of an exception to the discretionary function exception; see, note 27, supra.) In
(continued...)
anyone.40 The constitutionality of the Warner Amendment has been upheld by two
federal courts of appeals.41 Repeal of the Warner Amendment, it should be noted,
would not necessarily result in liability on the part of contractors; there would still
be the possibility that they could raise the government contractor defense. (On the
government contractor defense, see the final section of this report.)
In 1990, Congress enacted the Radiation Exposure Compensation Act, 42
U.S.C. § 2210 note, a compensation program for victims of atomic testing and
uranium mining. It authorizes $50,000 to be paid to any person who contracted
leukemia or certain listed cancers and was physically present in an area affected by
atmospheric nuclear tests for specified periods from 1951 through 1962. It also
authorizes $75,000 to be paid to any person who contracted leukemia or certain listed
cancers after having participated onsite in an atmospheric nuclear test. Finally, it
provides $100,000 to any person employed in a uranium mine at any time from 1947
to 1971 who contracted lung cancer or a nonmalignant respiratory disease, if he was
exposed to specified levels of radiation. (In none of these cases is a claimant
required to prove that radiation exposure actually caused his disease.) A person who
accepts compensation under the act forfeits all right to sue the United States or any
federal contractor for claims arising out of the same radiation exposure. “This act
was patterned in part on the Radiation-Exposed Veterans Compensation Act of 1988
(P.L. 100-321).”42 Department of Justice regulations under the Radiation Exposure
Compensation Act appear at 28 C.F.R. Part 79.
The Intentional Tort Exception
The intentional tort exception, 28 U.S.C. § 2680(h), provides that the FTCA
does not apply to claims:
arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.
However, the United States may be held liable for any of the first six torts in this
list if committed by an “investigative or law enforcement officer of the United States
Government.” 28 U.S.C. § 2680(h).43 This exception to the intentional tort
CRS-17
43 (...continued)
addition, several statutes make the intentional tort exception inapplicable to causes of action
arising out of negligence in the performance of medical or legal services by specified federal
employees. If these statutes did not make the intentional tort exception inapplicable, then
the intentional tort exception could bar recovery in malpractice actions arising out of
negligence because “a particular type of claim can be viewed, under traditional concepts,
as one type of tort rather than another, for example as an assault and battery rather than
negligence. . . . Illustrative is the case of Moos v. United States [225 F.2d 705 (8th Cir.
1955)] where the claimant entered a Veterans Administration hospital for an operation on
his left leg and hip; the surgeons, instead, erroneously operated on his right leg and hip; the
claim was held barred on the sound technical theory that the unconsented operation on the
right leg and hip constituted an assault and battery and that such was the basis of the claim
even though it may have been accompanied by or preceded by negligence.” Jayson and
Longstreth, supra, note 19, at § 13.06[1][a]. See also, Franklin v. United States, 992 F.2d
1492, 1495 (10th Cir. 1993) (“intentional tort exclusion bars a claim for damages based on
the unauthorized performance of surgery. . . . [H]owever . . . , the operation of that exclusion
is nullified . . . by an immunity statute [38 U.S.C. § 4116(f), today § 7316(f)] dealing
specifically with medical tort claims arising out of the actions of Veterans Administration
(VA) personnel”).
The statutes that make the intentional tort exception inapplicable in these
circumstances include 10 U.S.C. § 1054(e) (legal malpractice by employees of the
Department of Defense); 10 U.S.C. § 1089(e) (medical malpractice by employees of the
armed forces, National Guard, Department of Defense, United States Soldiers’ and Airmen’s
Home, or Central Intelligence Agency); 22 U.S.C. § 2702(e) (medical malpractice by
Department of State employees); 38 U.S.C. § 7316(f) (medical malpractice by Department
of Veterans Affairs employees); 42 U.S.C. § 233(e) (medical malpractice by Public Health
Service employees); 42 U.S.C. § 2458a(e) (medical malpractice by National Aeronautics
and Space Administration employees).
44 Jayson and Longstreth, supra, note 19, at § 13.06[1][b]. The Attorney General may settle,
for not more than $50,000 in any one case, a claim for damages caused by an investigative
or law enforcement officer as defined in 28 U.S.C. § 2680(h) who is employed by the
Department of Justice acting within the scope of employment that may not be settled under
the FTCA. See, 31 U.S.C. §§ 3724 and 3724 note. See also, note 17, supra. In addition,
the Tariff Act of 1930 authorizes the Secretary of Homeland Security to settle claims of up
to $50,000 that cannot be settled under the FTCA. 19 U.S.C. § 1630.
exception was enacted in 1974 and “grew out of widespread publicity given to
several incidents in which federal narcotics agents engaged in what a Senate
Committee described as ‘abusive, illegal and unconstitutional “no-knock raids.”’”44
In Sheridan v. United States, 487 U.S. 392 (1988), three naval corpsmen found
a naval enlisted man named Carr unconscious from alcohol consumption and
attempted to take him to a hospital emergency room. Before they reached the
emergency room, Carr regained consciousness, broke away from the corpsmen, and
displayed the barrel of his rifle to them. The corpsmen fled and did not alert any
authority that Carr was inebriated and armed. Carr ended up near a public street and
began shooting at passing vehicles, hitting one of the plaintiffs.
Because of the intentional tort exception, the plaintiffs in Sheridan could not sue
the government based on Carr’s shooting. Therefore, they sued the government
based on the three corpsmen’s negligence in failing to alert authorities as to the threat
CRS-18
45 This statute overturned Westfall v. Erwin, 484 U.S. 292 (1988), which held that “absolute
immunity from state law tort actions should be available only when the conduct of federal
officials is within the scope of their official duties and that conduct is discretionary in
nature.” Id. at 297-298 (emphasis in original). Prior to enactment of this statute, however,
some federal employees were already immune from suit. For example, 28 U.S.C. § 2679(b),
prior to its amendment by P.L. 100-694, made the FTCA the exclusive remedy for injuries
“resulting from the operation by any employee of the Government of any motor vehicle
while acting within the scope of his office or employment.” (This was known as the Federal
Drivers Act.) Other statutes made the FTCA the exclusive remedy for damages resulting
from legal malpractice by employees of the Department of Defense (10 U.S.C. § 1054), and
(continued...)
posed by Carr. The government argued that the intentional tort exception barred this
claim because, even though it was based on negligence, it was a claim “arising out”
of assault or battery within the meaning of 28 U.S.C. § 2680(h). The Supreme Court
did not rule on the government’s argument because it decided for the plaintiff on
another ground: that the intentional tort exception should “be construed to apply only
to claims that would otherwise be authorized by the basic waiver of sovereign
immunity. . . . The tortious conduct of an off-duty serviceman, not acting within the
scope of his office or employment, does not itself give rise to Government liability,
whether that conduct is intentional or merely negligent.” Id. at 400-401. This is
because the FTCA makes the government liable only for torts committed by an
employee while acting “within the scope of his office or employment.” 28 U.S.C.
§ 1346(b). Thus, since the government could not be liable for Carr’s acts, the
intentional tort exception did not apply to bar a suit based on the negligence of others
that led to Carr’s acts, even if, as the government argued, the suit arose out of Carr’s
intentional tort. Had Carr not been a federal employee at all, the result would have
been the same: since the government could not be liable for Carr’s acts, whether such
acts were negligent or intentional, the intentional tort exception would not apply to
bar a suit based on the negligence of federal employees that led to Carr’s intentional
tort.
The Court left open the question whether a suit based on the “negligent hiring,
negligent supervision, or negligent training may ever provide the basis for liability
under the FTCA for a foreseeable assault or battery by a Government employee
[acting within the scope of his employment].” Id. at 403 n.8. On this question, there
was subsequently a split in the federal circuits. See, Billingsley v. United States, 251
F.3d 696, 698 (8th Cir. 2001).
Justice Kennedy concurred in the judgment, but expressed the fear “that many,
if not all, intentional torts of Government employees plausibly could be ascribed to
the negligence of the tortfeasor’s supervisors.” Id. at 407.
Suits Against Federal Employees
The Federal Employees Liability Reform and Tort Compensation Act of 1988,
P.L. 100-694 (commonly know as the Westfall Act, after the Supreme Court case it
overturned), amended the FTCA to make it the exclusive remedy for torts committed
by federal employees within the scope of their employment.45 In other words, it
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45 (...continued)
medical malpractice by employees of the Department of Veterans Affairs (38 U.S.C. § 7316
(renumbered by P.L. 102-40 from 38 U.S.C. § 4116)), the Department of State (22 U.S.C.
§ 2702), the Public Health Service (42 U.S.C. § 233), the National Aeronautics and Space
Administration (42 U.S.C. § 2458a), or the armed forces, Department of Defense, United
States Soldiers’ and Airmen’s Home, or Central Intelligence Agency (10 U.S.C. § 1089).
46 The case against the employee is barred whether the judgment in the FTCA case is for or
against the United States. Farmer v. Perrill, 275 F.3d 958, 963 n.7 (10th Cir. 2001). If the
judgment in the case against the employee is handed down first, then the plaintiff may
secure judgments on both claims, but may not recover damages more than once. Turner v.
Ralston, 409 F. Supp. 1260 (W.D. Wis. 1976).
47 In Will v. Hallock, 546 U.S. 345 (2006), the Supreme Court held that, if a federal district
court rules on a motion that § 2676 constitutes a bar against a suit against a federal
employee, then 28 U.S.C. § 1291 precludes an appeal of that ruling, as the “collateral order
doctrine” does not apply. By contrast, rulings that reject an employee’s claim of absolute
or qualified immunity are immediately appealable under the collateral order doctrine.
48 As to the immunity for such claims, see, page 2, supra. The employee who allegedly
committed the tort in this case was a military physician, and claimed immunity under the
Gonzalez Act, 10 U.S.C. § 1089 (see, note 45, supra). The Ninth Circuit held that the
Gonzalez Act protects only military medical personnel who commit torts within the United
States. The Supreme Court did not rule on this issue, because it found the defendant
immune under P.L. 100-694. See also, Annotation, Construction and Application of
Westfall Act Provision Providing Federal Employee Immunity From Ordinary Tort Suits if
Attorney General Certifies that Employee was Acting Within Scope of Office or Employment
at Time of Incident Out of Which Claim Arose (28 USCS § 2679(d)), 120 ALR Fed 95.
49 28 U.S.C. § 2679(d)(1).
precludes federal employees from being sued for torts committed within the scope
of their employment. 28 U.S.C. § 2679(b)(1).
The Westfall Act, however, provides immunity only from liability under state
tort law; a federal employee may still be sued for violating the Constitution or
violating a federal statute that authorizes suit against an individual. 28 U.S.C.
§ 2679(b)(2). Such cases are barred, however, if the claimant sues the United States
under the FTCA and a judgment in the FTCA case is handed down before a judgment
in the case against the employee is handed down.46 28 U.S.C. § 2676.47
In United States v. Smith, 499 U.S. 160 (1991), the Supreme Court held that the
Westfall Act made federal employees immune from suit under state tort law even
when an FTCA exception precludes recovery against the United States. In this case,
the United States was immune because the claim had arisen in a foreign country.48
Certification. If a federal employee is sued under state tort law, in federal or
state court, for conduct that may have occurred within the scope of his employment,
then he may turn over papers that were served on him to the Attorney General, and
the Attorney General may certify that the federal employee “was acting within the
scope of employment at the time of the incident out of which the claim arose.”49 If
the Attorney General makes this certification, the United States is substituted for the
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50 Id.
51 § 2679(d)(2). As noted on page 3 of this report, suits under the FTCA may be heard only
in federal district court.
52 § 2679(d)(3).
53 Id.
54 Id.
55 A hypothetical issue of federal jurisdiction arose in the case, on which there was no
majority opinion. If a suit against a federal employee is brought in state court and the
Attorney General certifies that the employee was acting within the scope of his employment,
the resulting FTCA case must be removed to federal court. Then, if the federal court rejects
(continued...)
employee as a defendant in the action.50 The Attorney General’s certification
conclusively establishes that the defendant had been acting within the “scope of
office or employment for purposes of remov[ing]” a case from state court to federal
district court.51 If the Attorney General refuses to certify that the federal employee
“was acting within scope of employment,” then the employee may petition the court
in which he was sued for certification that he had been acting within the scope of
employment.52 If the court certifies that he had been acting within the scope of
employment, then the United States will be substituted as a defendant.53 If the court
that made this certification was a state court, then the Attorney General may remove
the case to a federal district court, but if the federal district court finds that the
employee’s actions were not within the scope of employment, then the case must be
remanded to state court.54
The Supreme Court has decided two cases addressing the certification
provisions. In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the Supreme
Court held that the Attorney General’s certification that a federal employee acted
within the scope of employment is reviewable in court. The majority opinion
explained:
When a federal employee is sued for a wrongful or negligent act, the [Westfall
Act] empowers the Attorney General to certify that the employee “was acting
within the scope of his office or employment at the time of the incident out of
which the claim arose. . . .” 28 U.S.C. § 2679(d)(1). Upon certification, the
employee is dismissed from the action and the United States is substituted as
defendant. The case then falls under the governance of the [FTCA]. . . . If,
however, an exception to the FTCA shields the United States from suit, the party
may be left without a tort action against any party.
Id. at 419-420. This is what occurred in this case, so, “[e]ndeavoring to redeem their
lawsuit, plaintiffs . . . sought review of the Attorney General’s scope-of-employment
certification, for if the employee was acting outside the scope of his employment, the
plaintiffs’ tort action could proceed against him. The lower court held the
certification unreviewable.” Id. at 420. The Supreme Court reversed, finding that
“Congress did not address this precise issue unambiguously, if at all,” and “that
judicial review of executive action ‘will not be cut off unless there is persuasive
reason to believe that such was the purpose of Congress.’” Id. at 424.55
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55 (...continued)
the certification and the employee is again made the defendant, what is the basis for federal
jurisdiction? If the plaintiff and the employee are of diverse citizenship, then there is no
problem, but, if they are not, then there arguably is no basis for federal jurisdiction.
However, the plurality opinion found that the fact that, in this hypothetical case, “there was
a nonfrivolous federal question [whether the employee was acting within the scope of his
federal employment], certified by the local U.S. Attorney, when the case was removed to
federal court,” is an adequate basis to find that the case “arises under” federal law (emphasis
in original). Id. at 435. All this was dictum, as there was diversity jurisdiction in the case
before the Court.
56 Osborn v. Haley, 127 S. Ct. 881, 888 (2007).
57 “The Supreme Court uses the term ‘constitutional tort’ for any constitutional violation for
which a court may award damages.” K. Davis, 5 ADMINISTRATIVE LAW TREATISE § 27:1
(2d ed. 1984).
In Osborn v. Haley, 127 S. Ct. 881 (2007), a federal employee had been sued
in state court, and the Attorney General had certified that the employee had been
acting within the scope of employment. The federal district court had invalidated the
Attorney General’s certification, finding it improper because the government
maintained that the incident in dispute never happened. The federal district court
then remanded the suit to the state court, thereby preventing the United States from
substituting itself as a defendant. The court of appeals vacated the district court
decision and the Supreme Court affirmed the court of appeals decision. The Supreme
Court held that the Attorney General’s certification was proper and that the United
States must remain as a substitute defendant “unless and until the District Court
determines that the employee, in fact . . . engaged in conduct beyond the scope of his
employment.”56 Next, the Supreme Court examined two conflicting statutory
provisions to determine whether a case that the Attorney General had certified and
that had been removed from a state court to a federal district court could be remanded
to the state court. One provision, 28 U.S.C. § 2679(d)(2), states that the Attorney
General’s certification is conclusive for the purposes of removing a case from a state
court to a federal district court. The other provision, 28 U.S.C. § 1447(d), bars
appellate review of “[a]n order remanding a case to the State court from which it was
removed.” The Supreme Court held that 28 U.S.C. § 2679(d)(2) controls, so that
once an Attorney General certifies, requiring the action to be removed from state
court to federal district court, the federal district court must retain jurisdiction and
cannot remand.
Constitutional Torts: Federal Employees’ Liability and Immunity.
Although the FTCA does not immunize federal employees when they violate the
Constitution, common law sometimes does. Before examining federal employees’
immunity from liability for constitutional torts, however, it is necessary to discuss
their liability for such torts.57 In Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), federal agents, without a warrant, entered and searched the plaintiff’s
apartment and arrested the plaintiff for alleged narcotics violations. A state official
who commits such a tort, in addition to being subject to liability under state tort law,
may be sued under 42 U.S.C. § 1983, which provides that any person who, under
color of any state statute, deprives another person of rights secured by the
Constitution or a federal statute, shall be liable to the person injured. A federal
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58 In Davis v. Passman, 442 U.S. 228 (1979), the Court held that a Member of Congress
could be found liable for damages for violating the Due Process Clause of the Fifth
Amendment by firing a member of his staff because of her sex. In its opinion the Court
indicated that all “justiciable constitutional rights are to be enforced through the courts.”
Id. at 242.
59 The statute of limitations for Bivens actions has not been addressed by the Supreme Court,
but lower courts have held “that Bivens actions are governed by the same state personal
injury limitations period applicable to [42 U.S.C.] section 1983 actions. . . .” Cook and
Sobieski, 2 CIVIL RIGHTS ACTIONS, ¶ 4.01[B] (2006).
60 In Bush v. Lucas, 462 U.S. 367, 368 (1983), the Court declined “to authorize a new
nonstatutory damages remedy for federal employees whose First Amendment rights are
violated by their superiors.” The Court’s reason was that “such claims arise out of an
employment relationship that is governed by comprehensive procedural and substantive
provisions giving meaningful remedies against the United States.”
official who commits a constitutional tort is not subject to liability under state tort
law (because of the Westfall Act), and no statute similar to § 1983 makes federal
officials liable under federal law for violating another person’s constitutional rights.
In Bivens and subsequent cases, however, the Supreme Court held that such a statute
is not necessary for an injured party to recover damages from a federal official who
commits a constitutional tort.58 “Having concluded that petitioner’s complaint states
a cause of action under the Fourth Amendment, supra, at 390-395, we hold that
petitioner is entitled to recover money damages for any injuries he has suffered as a
result of the agents’ violation of the Amendment.” Id. at 397.59
Subsequently, however, the Supreme Court indicated “that such a remedy may
not be available when ‘special factors counselling hesitation’ are present.” Chappell
v. Wallace, 462 U.S. 296, 298 (1983). In Chappell, five Navy enlisted men charged
their superior officers with treating them differently because of their minority race.
Guided by “the Court’s analysis in Feres” (id. at 299), the Supreme Court in
Chappell held:
Taken together, the unique disciplinary structure of the Military Establishment
and Congress’ activity in the field constitute “special factors” which dictate that
it would be inappropriate to provide enlisted military personnel a Bivens-type
remedy against their superior officers.
Id. at 304.60
In United States v. Stanley, 483 U.S. 669 (1987), the Army had given a
serviceman LSD without his knowledge, which caused him to suffer severe
personality changes that led to his discharge and the dissolution of his marriage. The
Supreme Court indicated that Feres barred his claim against the government, and that
Chappell barred his claim against the officers involved. The plaintiff had sought to
distinguish his case from Chappell on the grounds that, unlike in Chappell,
the defendants in this case were not Stanley’s superior military officers, and
indeed may well have been civilian personnel, and that the chain-of-command
concerns at the heart of Chappell . . . are thus not implicated. Second, Stanley
argues that there is no evidence that this injury was “incident to service.”
CRS-23
61 The principle behind the Feres doctrine, however, should be distinguished from the
doctrine itself, which applies only to suits against the United States. In Cross v. Fiscus, 830
F.2d 755, 756 (7th Cir. 1987), the court of appeals wrote: “The doctrine of Stanley and
Chappell tracks Feres. . . . But its source is different. Feres is a construction of a statute.
Stanley and Chappell are constructions of the Constitution based on considerations similar
to those that, the Court believes, influenced Congress when enacting the FTCA. If Congress
amended the FTCA, the principles of Stanley and Chappell would be unaffected — though
Congress could create a federal remedy against service personnel by passing a separate
statute.”
62 In Carlson v. Green, the Court spoke of “special factors counselling hesitation” and the
availability of an “alternative remedy which is explicitly declared to be a substitute” as
distinct situations in which Bivens actions are unavailable. In Schweiker v. Chilicky, 487
U.S. 412, 423 (1988), the Court said that “the concept of ‘special factors counselling
hesitation . . .’ has proved to include an appropriate judicial deference to indications . . . that
Congress has provided what it considers adequate remedial mechanisms.” In McCarthy v.
Madigan, 503 U.S. 140 (1992), the Court held that, where Congress had not required
exhaustion of remedies, a prisoner could bring a Bivens action solely for money damages
without resorting to an internal grievance procedure.
Id. at 679-680. The Court found that the second argument was not available to
Stanley because the issue of service incidence had been decided adversely to him
previously.
As for his first argument, Stanley and the lower courts may well be correct that
Chappell implicated military chain-of command concerns more directly than do
the facts alleged here. . . . It is therefore true that Chappell is not strictly
controlling, in the sense that no holding can be broader than the facts before the
court.
Id. at 680. However, the Court added:
Since Feres did not consider the officer-subordinate relationship crucial, but
established instead an “incident to service” test, it is plain that our reasoning in
Chappell does not support the distinction Stanley would rely on. . . . Today, no
more than when we wrote Chappell, do we see any reason why our judgment in
the Bivens context should be any less protective of military concerns than it has
been with respect to FTCA suits, where we adopted an “incident to service” rule.
Id. at 680-681. Thus, with respect to injuries incurred incident to service as a result
of constitutional torts, the principle behind the Feres doctrine applies equally to
preclude military personnel from suing either the government under the FTCA or
federal officials under Bivens.61
In addition to situations with “special factors counselling hesitation,”
Bivens-type actions are not permitted “when defendants show that Congress has
provided an alternative remedy which it explicitly declared to be a substitute for
recovery directly under the Constitution and viewed as equally effective.” Carlson
v. Green, 446 U.S. 14, 18-19 (1980) (emphasis in original).62 The Court in Carlson
v. Green allowed a Bivens-type action against a federal prison official for violating
the Cruel and Unusual Punishment Clause of the Eighth Amendment. The defendant
CRS-24
63 Correctional Services Corporation v. Malesko, 534 U.S. 61, 69 (2001).
argued that Congress had intended a suit against the United States under the FTCA
as an alternative remedy, but the Court held:
When Congress amended the FTCA in 1974 to create a cause of action against
the United States for intentional torts committed by federal law enforcement
officers, 28 U.S.C. § 2680(h), the congressional comments accompanying that
amendment made it crystal clear that Congress views FTCA and Bivens as
parallel, complementary causes of action.
Id. at 20.
In subsequent cases, the Supreme Court has continued to limit the availability
of Bivens actions. In FDIC v. Meyer, 510 U.S. 471 (1994), the Court declined “to
extend Bivens to permit suit against a federal agency, even though the agency —
because Congress had waived sovereign immunity — was otherwise amenable to
suit.”63 In Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), the
Court held that Bivens actions may not be brought “against private entities acting
under color of federal law” (id. at 66) — in this case “against a private corporation
operating a halfway house under contract with the Bureau of Prisons” (id. at 63).
Explaining its decisions in both Meyer and Malesko, the Court in Malesko said that
the purpose of Bivens is to deter individual officers, not policymaking entities, from
committing unconstitutional acts. Does this mean that an individual officer of a
private entity acting under color of federal law would be subject to a Bivens action?
The Court in Malesko did not decide the question.
In Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007), the Supreme Court
explained that
the decision whether to recognize a Bivens remedy may require two steps. In the
first place, there is the question whether any alternative, existing process for
protecting [a constitutionally recognized] interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new and freestanding remedy
in damages. But even in the absence of an alternative, a Bivens remedy is a
subject of judgment: “the federal courts must make the kind of remedial
determination that is appropriate for a common-law tribunal, paying special heed,
however, to any special factors counseling hesitation before authorizing a new
kind of federal litigation.” [Citations omitted.]
In Wilkie v. Robbins, the plaintiff had sought damages from officials of the Bureau
of Land Management, whom he “accused of harassment and intimidation aimed at
extracting an easement across private property.” Id. at 2593. The Court, applying
the two steps it cited, declined to allow a Bivens action, finding that “[a] judicial
standard to identify illegitimate pressure going beyond legitimately hard bargaining
would be endlessly knotty to work out . . . and would invite an onslaught of Bivens
actions.” Id. at 2604.
The Practical Side of Bivens Actions. According to one commentator,
“[i]ndividual liability under Bivens is fictional . . . because the federal government
CRS-25
64 Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’
Individual Liability Under Bivens, 88 Georgetown L.J. 65 (1999). Department of Justice
regulations at 28 C.F.R. § 50.15(a) provide: “Under the procedures set forth below, a federal
employee . . . may be provided representation in civil, criminal, and Congressional
proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when
the actions for which representation is requested reasonably appear to have been performed
with the scope of the employee’s employment and the Attorney General or his designee
determines that providing representation would otherwise be in the interests of the United
States.”
65 Id. at 66 (footnotes omitted).
66 Id. at 80.
in practice functions as the real party in interest, paying for representation and
reimbursing the sued individuals when they settle or pay judgments.”64
“Bivens has, however,” the commentator continues, “proved to be a
surreptitiously progovernment decision. Although it appears to provide a mechanism
for remedying constitutional violations, its application has rarely led to damages
recoveries. Government figures reflect that, out of approximately 12,000 Bivens
claims filed between 1971 and 1985, Bivens plaintiffs actually obtained a judgment
that was not reversed on appeal in only four cases. While similar figures have not
been systematically kept since 1985, recoveries from both settlements and litigated
judgments continue to be extraordinarily rare. According to one estimate, plaintiffs
obtain a judgment awarding them damages in a fraction of one percent of Bivens
cases and obtain a monetary settlement in less than one percent of such cases.”65
Qualified Immunity to Bivens Actions. Having summarized the law
governing federal employees’ liability for constitutional torts, we return to the
question of their common law immunity from liability for such torts. (The FTCA,
it will be recalled, gives them immunity only from state tort law.) Such immunity is
generally qualified, yet “[q]ualified immunity is undoubtedly the most significant bar
to constitutional tort actions.”66 In Butz v. Economou, 438 U.S. 478, 507 (1978), the
Supreme Court held
that, in a suit for damages arising from unconstitutional action, federal executive
officials exercising discretion are entitled only to the qualified immunity
specified in Scheuer, subject to those exceptional situations where it is
demonstrated that absolute immunity is essential for the conduct of public
business.
In Scheuer v. Rhodes, 416 U.S. 232, 247-248 (1974), referred to in this
quotation, the Supreme Court held that state executive officers are immune from
liability under 42 U.S.C. § 1983
in varying scope, . . . the variation being dependent upon the scope of discretion
and responsibilities of the office and all the circumstances as they reasonably
appeared at the time of the action on which liability is sought to be based. It is
the existence of reasonable grounds for the belief formed at the time and in light
of the circumstances, coupled with good-faith belief, that affords a basis for
CRS-26
67 In Anderson v. Creighton, 483 U.S. 635, 641 (1987), the Supreme Court applying the Butz
qualified immunity standard, held that a federal law enforcement officer is not liable for
participating in a search that violates the Fourth Amendment if “he could, as a matter of law,
reasonably have believed that the search . . . was lawful.” In Nixon v. Fitzgerald, 457 U.S.
731, 750, 754 (1982), the Court held that “[t]he President’s unique status under the
Constitution” entitles him to absolute immunity from “private suits for damages based on
[his] official acts.” (He is not immune, however, for actions allegedly taken before his term
began. Clinton v. Jones, 520 U.S. 681 (1997)). In Harlow v. Fitzgerald, 457 U.S. 800
(1982), the Court held that Presidential aides are entitled only to qualified immunity;
specifically, they are immune unless their actions violate clearly established law. In
Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court held that the holding in Harlow applied
even for acts performed by the Attorney General in the interest of national security.
Additional discussion of the immunity of federal officials for constitutional torts may be
found in Cook and Sobieski, 1 CIVIL RIGHTS ACTIONS ¶ 2.11 (2006).
68 The Court noted “that a few areas, involving ‘uniquely federal interests,’ . . . are so
committed by the Constitution and laws of the United States to federal control that state law
is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent
explicit statutory directive) by the courts — so-called ‘federal common law.’” Id. at 504.
Justice Brennan, in his dissent in Boyle, objected that “[j]ust as ‘[t]here is no federal preemption
in vacuo, without a constitutional text or a federal statute to assert it,’ . . . federal
common law cannot supersede state law in vacuo out of no more than an idiosyncratic
determination by five Justices that a particular area is ‘uniquely federal.’” Id. at 517.
qualified immunity of executive officers for acts performed in the course of
official conduct.
Because, under Butz, the Scheuer standard applies to federal as well as to state
officials, if a federal official, in the exercise of a discretionary function, violates a
person’s constitutional rights, he may be subject to liability, even though the
discretionary function exception of the FTCA would preclude liability on the part of
the government.67 Congress, however, has the power to grant additional immunity to
federal officials. See, Butz, 438 U.S. at 500.
The Government Contractor Defense
In Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988), the Supreme
Court held that “uniquely federal interests” in the government’s procurement of
equipment require that a “government contractor defense” be available in certain
cases. This is a defense that manufacturers may assert in products liability cases
alleging design defects. These are cases, brought under state law, in which the
plaintiff alleges that his injuries were caused by a product that was defective in that
the manufacturer failed to use the safest feasible design for the product. In its
defense, the manufacturer may assert that it manufactured the product pursuant to a
government contract and that the design it used was required by contract
specifications. In Boyle, the Supreme Court held that, notwithstanding state law,
“federal common law” requires that the government contractor defense be available
in certain cases.68 This is because “[t]he imposition of liability on Government
contractors will directly affect the terms of Government contracts: either the
contractor will decline to manufacture the design specified by the Government, or it
CRS-27
69 The Supreme Court has held that in cases in which the United States is immune under
Feres, a government contractor that is held liable may not recover indemnification from the
United States because to allow indemnification would make the United States indirectly
liable to the injured party. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977). The Federal Employees’ Compensation Act precludes federal civilian employees
from suing under the FTCA for work-related injuries. 5 U.S.C. § 8116(c). The Supreme
Court has held that, if a federal civilian employee recovers damages from a government
contractor for a work-related injury, the government contractor may recover indemnification
from the United States. The Court did not follow its reasoning in Stencel because, unlike
in the military context of Stencel, “[i]t is clear that the Government has waived its sovereign
immunity here.” Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 197 n.8 (1983).
will raise its price. Either way, the interests of the United States will be directly
affected.” Id. at 507.
The Court found that displacement of state law will occur only where “a
‘significant conflict’ exists between an identifiable ‘federal policy or interest and the
[operation] of state law,’ . . . or the application of state law would ‘frustrate specific
objectives’ of federal legislation. . . .” Id. A significant conflict may exist, the Court
found, where “the state-imposed duty of care that is the asserted basis of the
contractor’s liability . . . is precisely contrary to the duty imposed by the Government
contract.” Id. at 509. In some cases, however, the state-imposed duty of care will not
conflict with the federal contract, or, even if it does, will not be significant, as where
“a federal procurement officer orders, by model number, a quantity of stock [items
that happen to have a design defect].” Id. In such cases, the government contractor
defense would not be available.
Boyle was a suit by the father of a Marine who had been killed incident to
service in a helicopter accident, allegedly caused by the helicopter’s having been
defectively designed. The lower court had allowed the government contractor
defense on the basis of the reasoning behind the Feres doctrine. As the Supreme
Court explained: “Military contractor liability would conflict with this doctrine, the
Fourth Circuit reasoned, since the increased cost of the contractor’s tort liability
would be added to the price of the contract, and ‘[s]uch pass-through costs would . . .
defeat the purpose of the immunity for military accidents conferred upon the
government itself.’” Id. at 510.69 The Supreme Court did not adopt the Feres
doctrine as the basis for the government contractor defense:
Since that doctrine covers only service-related injuries, and not injuries caused
by the military to civilians, it could not be invoked to prevent, for example, a
civilian’s suit against the manufacturer of fighter planes, based on a state tort
theory, claiming harm from what is alleged to be needlessly high levels of noise
produced by jet engines. Yet we think that the character of the jet engines the
Government orders for its fighter planes cannot be regulated by state tort law, no
more in suits by civilians than in suits by members of the Armed Services.
Id. at 510-511. Rather, the Court found that the reasoning behind the discretionary
function exception furnished a better basis for the government contractor defense:
We think that the selection of the appropriate design for military equipment to
be used by our Armed Forces is assuredly a discretionary function within the
CRS-28
70 See, Sean Watts, Boyle v. United Technologies Corp. and the Government Contractor
Defense: An Analysis Based on the Current Circuit Split Regarding the Scope of the
Defense, 40 William and Mary Law Review 687 (1999).
meaning of this provision. . . . The financial burden of judgments against the
contractors would ultimately be passed through, substantially if not totally, to the
United States itself, since defense contractors will predictably raise their prices
to cover, or to insure against, contingent liability for the Government-ordered
designs. . . . In sum, we are of the view that state law which holds Government
Contractors liable for design defects in military equipment does in some
circumstances present a “significant conflict” with federal policy and must be
displaced.
Id. at 511-512. Delineating these circumstances, the Court ruled:
Liability for design defects in military equipment cannot be imposed, pursuant
to state law, when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States. The first two of
these conditions assure that the suit is within the area where the policy of the
“discretionary function” would be frustrated — i.e., they assure that the design
feature in question was considered by a Government officer, and not merely by
the contractor itself. The third condition is necessary because, in its absence, the
displacement of state tort law would create some incentive for the manufacturer
to withhold knowledge of risks . . . [thereby] cutting off information highly
relevant to the discretionary decision.
Id. at 512.
Although the defendant in Boyle was a military contractor, and the Court
throughout its opinion refers to military equipment, the fact that it based its opinion
on the discretionary function exception and not on the Feres doctrine seems to
indicate that the government contractor defense is available to both civilian and
military contractors. In Nielson v. George Diamond Vogel Paint Co., 892 F.2d 1450
(9th Cir. 1990), the court acknowledged that the Supreme Court’s reliance on the
discretionary function exception meant that the government contractor defense can
in principle apply to civilian equipment. “Yet,” it added, “the policy behind the
defense remains rooted in considerations peculiar to the military.” Id. at 1455. In the
case before it, which involved civilian equipment, it found “no reason to hold that the
application of state law would create a ‘significant conflict’ with federal policy
requiring a displacement of state law.” Id. There is currently a split in the circuits
over the applicability of the government contractor defense to non-military
contractors.70
In Hercules, Inc. v. United States, 516 U.S. 417 (1996), the Supreme Court
rejected a claim by Agent Orange manufacturers that they were entitled to
reimbursement from the government for the costs of defending and settling tort
claims brought against them by Vietnam veterans who were injured by the chemical.
The government had “prescribed the formula and detailed specifications for
CRS-29
manufacture” (id. at 419), but the settlement with the veterans occurred before Boyle
established the government contractor defense.
The manufacturers sued the United States under the Tucker Act, 28 U.S.C.
§§ 1346(a), 1491(a), which authorizes suits against the United States founded upon
“any express or implied contract.” They alleged an implied agreement by the
government to reimburse them for tort liability, and a breach of the contractual
warranty of specifications. As to the first, the Court held that there was no contract
either express or implied in fact; as to the second, the Court held that the government
“warrants that the contractor will be able to perform the contract satisfactorily if it
follows the specifications” (id. at 425), but that this warranty does not extend to
Third-party claims against the contractor.
{23}
28 U.S. Code § 2674 - Liability of United States
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.
With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.
With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter.
(June 25, 1948, ch. 646, 62 Stat. 983; Pub. L. 100–694, §§ 4, 9(c), Nov. 18, 1988, 102 Stat. 4564, 4567.)
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United States as defendant
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Summaries from Subsequent Cases (25)
I. “Holding the government liable only “under circumstances where the United States, if a private person, would be liable””Durden v. United States, 736 F.3d 296 (4th Cir. 2013)
II. “Adopting "law of the place where the act or omission occurred"”KANIFF v. U.S, 351 F.3d 780 (7th Cir. 2003)
More Summaries
Key Passages from this statute (11)
I. “(b)(1) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Quoted 498 times
II. “(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41.” Quoted 269 times
III. “(f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.” Quoted 36 times
IV. “(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).” Quoted 32 times
V. “(c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.” Quoted 18 times
VI. “(d) The district courts shall not have jurisdiction under this section of any civil action or claim for a pension.” Quoted 10 times
VII. “(e) The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986.” Quoted 6 times
VIII. “For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.” Quoted 1 time
IX. “Provisions in section 41(20) of title 28, U.S.C., 1940 ed., relating to time for commencing action against United States and jury trial constitute sections 2401 and 2402 of this title.” Quoted 1 time
X. “Words in section 41(20) “in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable” were omitted from subsection (a)(2) of this revised section as unnecessary.” Quoted 1 time
XI. “L. 91–350, § 2, July 23, 1970, 84 Stat. 449, provided that: “(a) In addition to granting jurisdiction over suits brought after the date of enactment of this Act [July 23, 1970], the provisions of this Act [amending this section and section 1491 of this title and section 724a of former Title 31, Money and Finance] shall also apply to claims and civil actions dismissed before or pending on the date of enactment of this Act if the claim or civil action is based upon a transaction, omission, or breach that occurred not more than six years prior to the date of enactment of this Act [July 23, 1970].” Quoted 1 time
More Passages
269
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41.
1
For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
498
(b) (1) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
32
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).
18
(c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.
10
(d) The district courts shall not have jurisdiction under this section of any civil action or claim for a pension.
6
(e) The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986.
36
(f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States. (g) Subject to the provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under chapter 5 of such title.
(June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, § 2(a), 63 Stat. 62; May 24, 1949, ch. 139, § 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ch. 655, § 50(b), 65 Stat. 727; July 30, 1954, ch. 648, § 1, 68 Stat. 589; Pub. L. 85–508, § 12(e), July 7, 1958, 72 Stat. 348; Pub. L. 88–519, Aug. 30, 1964, 78 Stat. 699; Pub. L. 89–719, title II, § 202(a), Nov. 2, 1966, 80 Stat. 1148; Pub. L. 91–350, § 1(a), July 23, 1970, 84 Stat. 449; Pub. L. 92–562, § 1, Oct. 25, 1972, 86 Stat. 1176; Pub. L. 94–455, title XII, § 1204(c)(1), title XIII, § 1306(b)(7), Oct. 4, 1976, 90 Stat. 1697, 1719; Pub. L. 95–563, § 14(a), Nov. 1, 1978, 92 Stat. 2389; Pub. L. 97–164, title I, § 129, Apr. 2, 1982, 96 Stat. 39; Pub. L. 97–248, title IV, § 402(c)(17), Sept. 3, 1982, 96 Stat. 669; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104–134, title I, § 101[(a)] [title VIII, § 806], Apr. 26, 1996, 110 Stat. 1321, 1321–75; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub. L. 104–331, § 3(b)(1), Oct. 26, 1996, 110 Stat. 4069; Pub. L. 111–350, § 5(g)(6), Jan. 4, 2011, 124 Stat. 3848; Pub. L. 113–4, title XI, § 1101(b), Mar. 7, 2013, 127 Stat. 134.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§ 41(20), 931(a), 932 (Mar. 3, 1911, ch. 231, § 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, § 1310(c), 42 Stat. 311; June 2, 1924, ch. 234, § 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, §§ 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, §§ 410(a), 411, 60 Stat. 843).
Section consolidates provisions of section 41(20) conferring jurisdiction upon the district court, in civil actions against the United States, with the first sentence of section 931(a) relating to jurisdiction of the district courts in tort claims cases, and those provisions of section 932 making the provisions of said section 41(20), relating to counterclaim and set-off, applicable to tort claims cases, all of title 28, U.S.C., 1940 ed.
Provision in section 931(a) of title 28, U.S.C., 1940 ed., for trials without a jury, is incorporated in section 2402 of this revised title. For other provisions thereof, see Distribution Table.
Words “commencing an action under this section” in subsec. (c) of this revised section cover the provision in section 932 of title 28, U.S.C., 1940 ed., requiring that the same provisions “for counterclaim and set-off” shall apply to tort claims cases brought in the district courts.
The phrase in section 931(a) of title 28, U.S.C., 1940 ed., “accruing on and after January 1, 1945” was omitted because executed as of the date of the enactment of this revised title.
1
Provisions in section 41(20) of title 28, U.S.C., 1940 ed., relating to time for commencing action against United States and jury trial constitute sections 2401 and 2402 of this title. (See reviser’s notes under said sections.)
Words in section 41(20) of title 28, U.S.C., 1940 ed., “commenced after passage of the Revenue Act of 1921” were not included in revised subsection (a)(1) because obsolete and superfluous. Actions under this section involving erroneous or illegal assessments by the collector of taxes would be barred unless filed within the 5-year limitation period of section 1113(a) of the Revenue Act of 1926, 44 Stat. 9, 116. (See United States v. A. S. Kreider Co., 1941, 61 S.Ct. 1007, 313 U.S. 443, 85 L.Ed. 1447.)
Words in section 41(20) of title 28, U.S.C., 1940 ed., “if the collector of internal revenue is dead or is not in office at the time such action or proceeding is commenced” were omitted.
The revised section retains the language of section 41(20) of title 28, U.S.C., 1940 ed., with respect to actions against the United States if the collector is dead or not in office when action is commenced, and consequently maintains the long existing distinctions in practice between actions against the United States and actions against the collector who made the assessment or collection. In the latter class of actions either party may demand a jury trial while jury trial is denied in actions against the United States. See section 2402 of this title. In reality all such actions are against the United States and not against local collectors. (See Lowe v. United States, 1938, 58 S.Ct. 896, 304 U.S. 302, 82 L.Ed. 1362; Manseau v. United States, D.C.Mich. 1943, 52 F.Supp. 395, and Combined Metals Reduction Co. v. United States, D.C.Utah 1943, 53 F.Supp. 739.)
The revised subsection (c)(1) omitted clause: “but no suit pending on the 27th day of June 1898 shall abate or be affected by this provision,” contained in section 41(20) of title 28, U.S.C., 1940 ed., as obsolete and superfluous. The words contained in section 41(20) of title 28, U.S.C., 1940 ed., “claims growing out of the Civil War, and commonly known as ‘war-claims,’ or to hear and determine other claims which had been reported adversely prior to the 3d day of March 1887 by any court, department, or commission authorized to have and determine the same,” were omitted for the same reason.
The words “in a civil action or in admiralty,” in subsection (a)(2), were substituted for “either in a court of law, equity, or admiralty” to conform to Rule 2 of the Federal Rules of Civil Procedure.
1
Words in section 41(20) “in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable” were omitted from subsection (a)(2) of this revised section as unnecessary. See reviser’s note under section 1491 of this title.
For jurisdiction of The Tax Court to review claims for refunds of processing taxes collected under the unconstitutional Agriculture Adjustment Act, see sections 644–659 of title 7, U.S.C., 1940 ed., Agriculture, and the 1942 Revenue Act, Act Oct. 21, 1942, ch. 610, title V, § 510(a), (c), (d), 56 Stat. 667. (See, also, Lamborn v. United States, C.C.P.A. 1939, 104 F.2d 75, certiorari denied 60 S.Ct. 115, 308 U.S. 589, 84 L.Ed. 493.)
See, also, reviser’s note under section 1491 of this title as to jurisdiction of the Court of Claims in suits against the United States generally. For venue of actions under this section, see section 1402 of this title and reviser’s note thereunder.
Minor changes were made in phraseology.
Senate Revision Amendment
The provision of title 28, U.S.C., § 932, which related to application of the Federal Rules of Civil Procedure, were originally set out in section 2676 of this revised title, but such section 2676 was eliminated by Senate amendment. See 80th Congress Senate Report No. 1559, amendment No. 61.
1949 Act
This section corrects typographical errors in section 1346(a)(1) of title 28, U.S.C., and in section 1346(b) of such title.
References in Text
Sections 6226, 6228(a), 7426, 7428, and 7429 of the Internal Revenue Code of 1986, referred to in subsec. (e), are classified to sections 6226, 6228(a), 7426, 7428, and 7429, respectively, of Title 26, Internal Revenue Code.
Amendments
2013—Subsec. (b)(2). Pub. L. 113–4 inserted “or the commission of a sexual act (as defined in section 2246 of title 18)” before period at end.
2011—Subsec. (a)(2). Pub. L. 111–350 substituted “sections 7104(b)(1) and 7107(a)(1) of title 41” for “sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978”.
1996—Subsec. (b). Pub. L. 104–134 designated existing provisions as par. (1) and added par. (2).
Subsec. (g). Pub. L. 104–331 added subsec. (g).
1992—Subsec. (a). Pub. L. 102–572 substituted “United States Court of Federal Claims” for “United States Claims Court”.
1986—Subsec. (e). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1982—Subsec. (a). Pub. L. 97–164 substituted “United States Claims Court” for “Court of Claims”.
Subsec. (e). Pub. L. 97–248 substituted “section 6226, 6228(a), 7426, or” for “section 7426 or section”.
1978—Subsec. (a)(2). Pub. L. 95–563 excluded from the jurisdiction of district courts civil actions or claims against the United States founded upon any express or implied contract with the United States or for damages in cases not sounding in tort subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978.
1976—Subsec. (e). Pub. L. 94–455 inserted “or section 7429” and “or section 7428 (in the case of the United States district court for the District of Columbia)”, after “section 7426”.
1972—Subsec. (f). Pub. L. 92–562 added subsec. (f).
1970—Subsec. (a)(2). Pub. L. 91–350 specified that the term “express or implied contracts with the United States” includes express or implied contracts with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration.
1966—Subsec. (e). Pub. L. 89–719 added subsec. (e).
1964—Subsec. (d). Pub. L. 88–519 struck out provisions which prohibited district courts from exercising jurisdiction of civil actions or claims to recover fees, salary, or compensation for official services of officers or employees of the United States.
1958—Subsec. (b). Pub. L. 85–508 struck out reference to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska.
1954—Subsec. (a)(1). Act July 30, 1954, struck out language imposing jurisdictional limitation of $10,000 on suits to recover taxes.
1951—Subsec. (d). Act Oct. 31, 1951, inserted references to “claim” and “employees”.
1949—Subsec. (a)(1). Act May 24, 1949, § 80(a), inserted “, (i) if the claim does not exceed $10,000 or (ii)”.
Subsec. (b). Acts Apr. 25, 1949, and May 24, 1949, § 80(b), made a technical change to correct “chapter 173” to read “chapter 171”, and inserted “on and after January 1, 1945” after “for money damages”.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–331 effective Oct. 1, 1997, see section 3(d) of Pub. L. 104–331, set out as an Effective Date note under section 1296 of this title.
Effective Date of 1992 Amendment
Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of this title.
Effective Date of 1982 Amendments
Amendment by Pub. L. 97–248 applicable to partnership taxable years beginning after Sept. 3, 1982, with provision for the applicability of the amendment to any partnership taxable year ending after Sept. 3, 1982, if the partnership, each partner, and each indirect partner requests such application and the Secretary of the Treasury or his delegate consents to such application, see section 407(a)(1), (3) of Pub. L. 97–248, set out as an Effective Date note under section 6221 of Title 26, Internal Revenue Code.
Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95–563 effective with respect to contracts entered into 120 days after Nov. 1, 1978 and, at the election of the contractor, with respect to any claim pending at such time before the contracting officer or initiated thereafter, see section 16 of Pub. L. 95–563, Nov. 1, 1978, 92 Stat. 2391, formerly set out as an Effective Date note under section 601 of former Title 41, Public Contracts.
Effective Date of 1970 Amendment
Pub.
1
L. 91–350, § 2, July 23, 1970, 84 Stat. 449, provided that:
“(a) In addition to granting jurisdiction over suits brought after the date of enactment of this Act [July 23, 1970], the provisions of this Act [amending this section and section 1491 of this title and section 724a of former Title 31, Money and Finance] shall also apply to claims and civil actions dismissed before or pending on the date of enactment of this Act if the claim or civil action is based upon a transaction, omission, or breach that occurred not more than six years prior to the date of enactment of this Act [July 23, 1970]. “(b) The provisions of subsection (a) of this section shall apply notwithstanding a determination or judgment made prior to the date of enactment of this Act that the United States district courts or the United States Court of Claims did not have jurisdiction to entertain a suit on an express or implied contract with a nonappropriated fund instrumentality of the United States described in section 1 of this Act.”
Effective Date of 1966 Amendment
Pub. L. 89–719, title II, § 203, Nov. 2, 1966, 80 Stat. 1149, provided that:
“The amendments made by this title [amending this section and sections 1402 and 2410 of this title] shall apply after the date of the enactment of this Act [Nov. 2, 1966].”
Effective Date of 1958 Amendment
Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, set out as a note under section 542 of Title 6.
Termination of United States District Court for the District of the Canal Zone
For termination of the United States District Court for the District of the Canal Zone at end of the “transition period”, being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70, title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign Relations and Intercourse.
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28 U.S. Code § 2672 - Administrative adjustment of claims
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred: Provided, That any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement. Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle any tort claim against the United States, to the extent of the agency’s authority to award, compromise, or settle such claim without the prior written approval of the Attorney General or his or her designee.
Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award, compromise, settlement, or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud.
Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of the Federal agency concerned out of appropriations available to that agency. Payment of any award, compromise, or settlement in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or funds available for the payment of such judgments and compromises are hereby made available for the payment of awards, compromises, or settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or settlement 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.
(June 25, 1948, ch. 646, 62 Stat. 983; Apr. 25, 1949, ch. 92, § 2(b), 63 Stat. 62; May 24, 1949, ch. 139, § 125, 63 Stat. 106; Sept. 23, 1950, ch. 1010, § 9, 64 Stat. 987; Pub. L. 86–238, § 1(1), Sept. 8, 1959, 73 Stat. 471; Pub. L. 89–506, §§ 1, 9(a), July 18, 1966, 80 Stat. 306, 308; Pub. L. 101–552, § 8(a), Nov. 15, 1990, 104 Stat. 2746.)
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22 U.S. Code § 2151n - Human rights and development assistance
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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(a) Violations barring assistance; assistance for needy people
No assistance may be provided under subchapter I of this chapter to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.
(b) [1] Information to Congressional committees for realization of assistance for needy people; concurrent resolution terminating assistance
In determining whether this standard is being met with regard to funds allocated under subchapter I of this chapter, the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives may require the Administrator primarily responsible for administering subchapter I of this chapter to submit in writing information demonstrating that such assistance will directly benefit the needy people in such country, together with a detailed explanation of the assistance to be provided (including the dollar amounts of such assistance) and an explanation of how such assistance will directly benefit the needy people in such country. If either committee or either House of Congress disagrees with the Administrator’s justification it may initiate action to terminate assistance to any country by a concurrent resolution under section 2367 of this title.
(b) 1 Protection of children from exploitation
No assistance may be provided to any government failing to take appropriate and adequate measures, within their means, to protect children from exploitation, abuse or forced conscription into military or paramilitary services.
(c) Factors consideredIn determining whether or not a government falls within the provisions of subsection (a) and in formulating development assistance programs under subchapter I of this chapter, the Administrator shall consider, in consultation with the Assistant Secretary of State for Democracy, Human Rights, and Labor and in consultation with the Ambassador at Large for International Religious Freedom—
(1)
the extent of cooperation of such government in permitting an unimpeded investigation of alleged violations of internationally recognized human rights by appropriate international organizations, including the International Committee of the Red Cross, or groups or persons acting under the authority of the United Nations or of the Organization of American States;
(2)
specific actions which have been taken by the President or the Congress relating to multilateral or security assistance to a less developed country because of the human rights practices or policies of such country; and
(3) whether the government—
(A)
has engaged in or tolerated particularly severe violations of religious freedom, as defined in section 6402 of this title; or
(B)
has failed to undertake serious and sustained efforts to combat particularly severe violations of religious freedom (as defined in section 6402 of this title), when such efforts could have been reasonably undertaken.
(d) Report to Speaker of House and Committee on Foreign Relations of the SenateThe Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, by February 25 of each year, a full and complete report regarding—
(1) the status of internationally recognized human rights, within the meaning of subsection (a)—
(A)
in countries that receive assistance under subchapter I of this chapter, and
(B)
in all other foreign countries which are members of the United Nations and which are not otherwise the subject of a human rights report under this chapter;
(2)
wherever applicable, practices regarding coercion in population control, including coerced abortion and involuntary sterilization;
(3) the status of child labor practices in each country, including—
(A)
whether such country has adopted policies to protect children from exploitation in the workplace, including a prohibition of forced and bonded labor and policies regarding acceptable working conditions; and
(B)
the extent to which each country enforces such policies, including the adequacy of the resources and oversight dedicated to such policies;
(4)
the votes of each member of the United Nations Commission on Human Rights on all country-specific and thematic resolutions voted on at the Commission’s annual session during the period covered during the preceding year;
(5)
the extent to which each country has extended protection to refugees, including the provision of first asylum and resettlement;
(6)
the steps the Administrator has taken to alter United States programs under subchapter I of this chapter in any country because of human rights considerations;
(7)
wherever applicable, violations of religious freedom, including particularly severe violations of religious freedom (as defined in section 6402 of this title);
(8) wherever applicable, a description of the nature and extent of acts of anti-Semitism and anti-Semitic incitement that occur during the preceding year, including descriptions of—
(A)
acts of physical violence against, or harassment of [2] Jewish people, and acts of violence against, or vandalism of [2] Jewish community institutions, including schools, synagogues, and cemeteries;
(B)
instances of propaganda in government and nongovernment media that attempt to justify or promote racial hatred or incite acts of violence against Jewish people;
(C)
the actions, if any, taken by the government of the country to respond to such violence and attacks or to eliminate such propaganda or incitement;
(D)
the actions taken by such government to enact and enforce laws relating to the protection of the right to religious freedom of Jewish people; and
(E)
the efforts of such government to promote anti-bias and tolerance education;
(9)
wherever applicable, consolidated information regarding the commission of war crimes, crimes against humanity, and evidence of acts that may constitute genocide (as defined in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide and modified by the United States instrument of ratification to that convention and section 2(a) of the Genocide Convention Implementation Act of 1987);
(10)
for each country with respect to which the report indicates that extrajudicial killings, torture, or other serious violations of human rights have occurred in the country, the extent to which the United States has taken or will take action to encourage an end to such practices in the country;
(11)
(A) wherever applicable, a description of the nature and extent—
(i)
of the compulsory recruitment and conscription of individuals under the age of 18 by armed forces of the government of the country, government-supported paramilitaries, or other armed groups, and the participation of such individuals in such groups; and
(ii)
that such individuals take a direct part in hostilities;
(B)
what steps, if any, taken by the government of the country to eliminate such practices;
(C)
such other information related to the use by such government of individuals under the age of 18 as soldiers, as determined to be appropriate by the Secretary; and
(12) wherever applicable—
(A)
a description of the status of freedom of the press, including initiatives in favor of freedom of the press and efforts to improve or preserve, as appropriate, the independence of the media, together with an assessment of progress made as a result of those efforts;
(B)
an identification of countries in which there were violations of freedom of the press, including direct physical attacks, imprisonment, indirect sources of pressure, and censorship by governments, military, intelligence, or police forces, criminal groups, or armed extremist or rebel groups; and
(C) in countries where there are particularly severe violations of freedom of the press—
(i)
whether government authorities of each such country participate in, facilitate, or condone such violations of the freedom of the press; and
(ii)
what steps the government of each such country has taken to preserve the safety and independence of the media, and to ensure the prosecution of those individuals who attack or murder journalists.
(e) Promotion of civil and political rights
The President is authorized and encouraged to use not less than $3,000,000 of the funds made available under this part, part X of this subchapter, and part IV of subchapter II of this chapter for each fiscal year for studies to identify, and for openly carrying out programs and activities which will encourage or promote increased adherence to civil and political rights, including the right to free religious belief and practice, as set forth in the Universal Declaration of Human Rights, in countries eligible for assistance under this part or under part X of this subchapter, except that funds made available under part X of this subchapter may only be used under this subsection with respect to countries in sub-Saharan Africa. None of these funds may be used, directly or indirectly, to influence the outcome of any election in any country.
(f) Annual country reports on human rights practices
(1) The report required by subsection (d) shall include the following:
(A)
A description of the nature and extent of severe forms of trafficking in persons, as defined in section 7102 of this title, in each foreign country.
(B) With respect to each country that is a country of origin, transit, or destination for victims of severe forms of trafficking in persons, an assessment of the efforts by the government of that country to combat such trafficking. The assessment shall address the following:
(i)
Whether government authorities in that country participate in, facilitate, or condone such trafficking.
(ii)
Which government authorities in that country are involved in activities to combat such trafficking.
(iii)
What steps the government of that country has taken to prohibit government officials from participating in, facilitating, or condoning such trafficking, including the investigation, prosecution, and conviction of such officials.
(iv)
What steps the government of that country has taken to prohibit other individuals from participating in such trafficking, including the investigation, prosecution, and conviction of individuals involved in severe forms of trafficking in persons, the criminal and civil penalties for such trafficking, and the efficacy of those penalties in eliminating or reducing such trafficking.
(v)
What steps the government of that country has taken to assist victims of such trafficking, including efforts to prevent victims from being further victimized by traffickers, government officials, or others, grants of relief from deportation, and provision of humanitarian relief, including provision of mental and physical health care and shelter.
(vi)
Whether the government of that country is cooperating with governments of other countries to extradite traffickers when requested, or, to the extent that such cooperation would be inconsistent with the laws of such country or with extradition treaties to which such country is a party, whether the government of that country is taking all appropriate measures to modify or replace such laws and treaties so as to permit such cooperation.
(vii)
Whether the government of that country is assisting in international investigations of transnational trafficking networks and in other cooperative efforts to combat severe forms of trafficking in persons.
(viii)
Whether the government of that country refrains from prosecuting victims of severe forms of trafficking in persons due to such victims having been trafficked, and refrains from other discriminatory treatment of such victims.
(ix)
Whether the government of that country recognizes the rights of victims of severe forms of trafficking in persons and ensures their access to justice.
(C)
Such other information relating to trafficking in persons as the Secretary of State considers appropriate.
(2)
In compiling data and making assessments for the purposes of paragraph (1), United States diplomatic mission personnel shall consult with human rights organizations and other appropriate nongovernmental organizations.
(g) Child marriage status
(1) In general
The report required under subsection (d) shall include, for each country in which child marriage is prevalent, a description of the status of the practice of child marriage in such country.
(2) Defined termIn this subsection, the term “child marriage” means the marriage of a girl or boy who is—
(A)
younger than the minimum age for marriage under the laws of the country in which such girl or boy is a resident; or
(B)
younger than 18 years of age, if no such law exists.
(Pub. L. 87–195, pt. I, § 116, as added Pub. L. 94–161, title III, § 310, Dec. 20, 1975, 89 Stat. 860; amended Pub. L. 95–88, title I, § 111, Aug. 3, 1977, 91 Stat. 537; Pub. L. 95–105, title I, § 109(a)(2), Aug. 17, 1977, 91 Stat. 846; Pub. L. 95–424, title I, § 109, Oct. 6, 1978, 92 Stat. 947; Pub. L. 96–53, title I, § 106, title V, § 504(a), Aug. 14, 1979, 93 Stat. 362, 378; Pub. L. 96–533, title III, § 305, title VII, § 701(a), Dec. 16, 1980, 94 Stat. 3147, 3156; Pub. L. 97–113, title III, § 306, Dec. 29, 1981, 95 Stat. 1533; Pub. L. 98–164, title X, § 1002(a), Nov. 22, 1983, 97 Stat. 1052; Pub. L. 99–440, title II, § 202, Oct. 2, 1986, 100 Stat. 1095; Pub. L. 99–631, § 1(b)(2), Nov. 7, 1986, 100 Stat. 3519; Pub. L. 100–204, title I, § 127(1), Dec. 22, 1987, 101 Stat. 1342; Pub. L. 101–513, title V, §§ 562(d)(3), 599D, Nov. 5, 1990, 104 Stat. 2031, 2066; Pub. L. 103–149, § 4(a)(3)(B), Nov. 23, 1993, 107 Stat. 1505; Pub. L. 103–236, title I, § 162(e)(1), Apr. 30, 1994, 108 Stat. 405; Pub. L. 103–437, § 9(a)(6), Nov. 2, 1994, 108 Stat. 4588; Pub. L. 104–319, title II, § 201(a), Oct. 19, 1996, 110 Stat. 3866; Pub. L. 105–277, div. G, subdiv. B, title XXII, § 2216, Oct. 21, 1998, 112 Stat. 2681–815; Pub. L. 105–292, title I, § 102(d)(1), title IV, § 421(a), title V, § 501(b), Oct. 27, 1998, 112 Stat. 2794, 2809, 2811; Pub. L. 106–113, div. B, §§ 1000(a)(2) [title V, § 597], 1000(a)(7) [div. A, title VIII, § 806(a)], Nov. 29, 1999, 113 Stat. 1535, 1536, 1501A–126, 1501A–471; Pub. L. 106–386, div. A, § 104(a), Oct. 28, 2000, 114 Stat. 1471; Pub. L. 107–228, div. A, title VI, §§ 665(a), 683(a), Sept. 30, 2002, 116 Stat. 1406, 1410; Pub. L. 108–332, § 6(a)(1), Oct. 16, 2004, 118 Stat. 1285; Pub. L. 111–166, § 2(1), May 17, 2010, 124 Stat. 1186; Pub. L. 113–4, title XII, § 1207(b)(1), Mar. 7, 2013, 127 Stat. 141.)
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Pub. L. 106-484 Bring Them Home Alive Act of 2000
106 th Congress
November 9, 2000
114 Stat. 2195
______________
[S.484]
One Hundred Sixth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the twenty-fourth day of January, two thousand
An Act
To provide for the granting of refugee status in the United States to nationals of certain foreign countries in which American Vietnam War POW/MIAs or American Korean War POW/MIAs may be present, if those nationals assist in the return to the United States of those POW/MIAs alive.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled ,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Bring Them Home Alive Act of 2000”.
SEC. 2. AMERICAN VIETNAM WAR POW/MIA ASYLUM PROGRAM.
(a) ASYLUM FOR ELIGIBLE ALIENS- Notwithstanding any other provision of law, the Attorney General shall grant refugee status in the United States to any alien described in subsection (b), upon the application of that alien.
(b) ELIGIBILITY- Refugee status shall be granted under subsection (a) to-
(1) any alien who-
(A) is a national of Vietnam, Cambodia, Laos, China, or any of the independent states of the former Soviet Union; and
(B) personally delivers into the custody of the United States Government a living American Vietnam War POW/MIA; and
(2) any parent, spouse, or child of an alien described in paragraph (1).
(c) DEFINITIONS- In this section:
(1) AMERICAN VIETNAM WAR POW/MIA-
(A) IN GENERAL- Except as provided in subparagraph (B), the term “American Vietnam War
POW/MIA” means an individual-
(i) who is a member of a uniformed service (within the meaning of section 101(3) of title 37,United States Code) in a missing status (as defined in section 551(2) of such title and this subsection) as a result of the Vietnam War; or
(ii) who is an employee (as defined in section 5561(2) of title 5, United States Code) in a missing status (as defined in section 5561(5) of such title) as a result of the Vietnam War.
(B) EXCLUSION- Such term does not include an individual with respect to whom it is officially determined under section 552(c) of title 37, United States Code, that such individual is officially absent from such individual's post of duty without authority.
(2) MISSING STATUS- The term “missing status”, with respect to the Vietnam War, means the status of an individual as a result of the Vietnam War if immediately before that status began the individual--
(A) was performing service in Vietnam; or
(B) was performing service in Southeast Asia in direct support of military operations in Vietnam.
(3) VIETNAM WAR- The term “Vietnam War” means the conflict in Southeast Asia during the period that began on February 28, 1961, and ended on May 7, 1975.
SEC. 3. AMERICAN KOREAN WAR POW/MIA ASYLUM PROGRAM.
(a) ASYLUM FOR ELIGIBLE ALIENS- Notwithstanding any other provision of law, the Attorney General shall grant refugee status in the United States to any alien described in subsection (b), upon the application of that alien.
(b) ELIGIBILITY- Refugee status shall be granted under subsection (a) to--
(1) any alien--
(A) who is a national of North Korea, China, or any of the independent states of the former Soviet Union; and
(B) who personally delivers into the custody of the United States Government a living American
Korean War POW/MIA; and
(2) any parent, spouse, or child of an alien described in paragraph (1).
(c) DEFINITIONS- In this section:
(1) AMERICAN KOREAN WAR POW/MIA-
(A) IN GENERAL- Except as provided in subparagraph (B), the term “American Korean War POW/MIA” means an individual--
(i) who is a member of a uniformed service (within the meaning of section 101(3) of title 37, United States Code) in a missing status (as defined in section 551(2) of such title and this subsection) as a result of the Korean War; or
(ii) who is an employee (as defined in section 5561(2) of title 5, United States Code) in a missing status (as defined in section 5561(5) of such title) as a result of the Korean War.
(B) EXCLUSION- Such term does not include an individual with respect to whom it is officially determined under section 552(c) of title 37, United States Code, that such individual is officially absent from such individual's post of duty without authority.
(2) KOREAN WAR- The term “Korean War” means the conflict on the Korean peninsula during the period that began on June 27, 1950, and ended January 31, 1955.
(3) MISSING STATUS- The term “missing status”, with respect to the Korean War, means the status of an individual as a result of the Korean War if immediately before that status began the individual--
(A) was performing service in the Korean peninsula; or
(B) was performing service in Asia in direct support of military operations in the Korean peninsula.
SEC. 4. BROADCASTING INFORMATION ON THE “BRING THEM HOME ALIVE” PROGRAM.
(a) REQUIREMENT-
(1) IN GENERAL- The International Broadcasting Bureau shall broadcast, through WORLDNET Television
and Film Service and Radio, VOA-TV, VOA Radio, or otherwise, information that promotes the “Bring
Them Home Alive” refugee program under this Act to foreign countries covered by paragraph (2).
(2) COVERED COUNTRIES- The foreign countries covered by paragraph (1) are--
(A) Vietnam, Cambodia, Laos, China, and North Korea; and
(B) Russia and the other independent states of the former Soviet Union.
(b) LEVEL OF PROGRAMMING- The International Broadcasting Bureau shall broadcast--
(1) at least 20 hours of the programming described in subsection (a)(1) during the 30-day period that begins 15 days after the date of enactment of this Act; and
(2) at least 10 hours of the programming described in subsection (a)(1) in each calendar quarter during the period beginning with the first calendar quarter that begins after the date of enactment of this Act and ending five years after the date of enactment of this Act.
(c) AVAILABILITY OF INFORMATION ON THE INTERNET- The International Broadcasting Bureau shall ensure that information regarding the “Bring Them Home Alive” refugee program under this Act is readily available on the World Wide Web sites of the Bureau.
(d) SENSE OF CONGRESS- It is the sense of Congress that RFE/RL, Incorporated, Radio Free Asia, and any other recipient of Federal grants that engages in international broadcasting to the countries covered by subsection (a)(2) should broadcast information similar to the information required to be broadcast by subsection (a)(1).
(e) DEFINITION- The term “International Broadcasting Bureau” means the International Broadcasting Bureau of the United States Information Agency or, on and after the effective date of title XIII of the Foreign Affairs Reform and Restructuring Act of 1998 (as contained in division G of Public Law 105-277), the International Broadcasting Bureau of the Broadcasting Board of Governors.
SEC. 5. INDEPENDENT STATES OF THE FORMER SOVIET UNION DEFINED.
In this Act, the term “independent states of the former Soviet Union” has the meaning given the term in section 3 of the FREEDOM Support Act (22 U.S.C. 5801).
Speaker of the House of Representatives .
Vice President of the United States and
President of the Senate .
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22 U.S. Code § 7103a - Creating, building, and strengthening partnerships against significant trafficking in persons
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
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(a) Declaration of purposeThe purpose of this section is to promote collaboration and cooperation—
(1)
between the United States Government and governments listed on the annual Trafficking in Persons Report;
(2)
between foreign governments and civil society actors; and
(3)
between the United States Government and private sector entities.
(b) PartnershipsThe Director of the office established pursuant to section 7103(e)(1) of this title, in coordination and cooperation with other officials at the Department of State, officials at the Department of Labor, and other relevant officials of the United States Government, shall promote, build, and sustain partnerships between the United States Government and private entities, including foundations, universities, corporations, community-based organizations, and other nongovernmental organizations, to ensure that—
(1)
United States citizens do not use any item, product, or material produced or extracted with the use and labor from victims of severe forms of trafficking; and
(2)
such entities do not contribute to trafficking in persons involving sexual exploitation.
(c) Program to address emergency situations
The Secretary of State, acting through the Director established pursuant to section 7103(e)(1) of this title, is authorized to establish a fund to assist foreign governments in meeting unexpected, urgent needs in prevention of trafficking in persons, protection of victims, and prosecution of trafficking offenders.
(d) Child protection compacts
(1) In generalThe Secretary of State, in consultation with the Administrator of the United States Agency for International Development, the Secretary of Labor, and the heads of other relevant agencies, is authorized to provide assistance under this section for each country that enters into a child protection compact with the United States to support policies and programs that—
(A)
prevent and respond to violence, exploitation, and abuse against children; and
(B)
measurably reduce the trafficking of minors by building sustainable and effective systems of justice, prevention, and protection.
(2) ElementsA child protection compact under this subsection shall establish a multi-year plan for achieving shared objectives in furtherance of the purposes of this chapter. The compact should take into account, if applicable, the national child protection strategies and national action plans for human trafficking of a country, and shall describe—
(A)
the specific objectives the foreign government and the United States Government expect to achieve during the term of the compact;
(B)
the responsibilities of the foreign government and the United States Government in the achievement of such objectives;
(C)
the particular programs or initiatives to be undertaken in the achievement of such objectives and the amount of funding to be allocated to each program or initiative by both countries;
(D)
regular outcome indicators to monitor and measure progress toward achieving such objectives;
(E)
a multi-year financial plan, including the estimated amount of contributions by the United States Government and the foreign government, and proposed mechanisms to implement the plan and provide oversight;
(F)
how a country strategy will be developed to sustain progress made toward achieving such objectives after expiration of the compact; and
(G)
how child protection data will be collected, tracked, and managed to provide strengthened case management and policy planning.
(3) Form of assistance
Assistance under this subsection may be provided in the form of grants, cooperative agreements, or contracts to or with national governments, regional or local governmental units, or non-governmental organizations or private entities with expertise in the protection of victims of severe forms of trafficking in persons.
(4) Eligible countriesThe Secretary of State, in consultation with the agencies set forth in paragraph (1) and relevant officers of the Department of Justice, shall select countries with which to enter into child protection compacts. The selection of countries under this paragraph shall be based on—
(A)
the selection criteria set forth in paragraph (5); and
(B)
objective, documented, and quantifiable indicators, to the maximum extent possible.
(5) Selection criteriaA country shall be selected under paragraph (4) on the basis of criteria developed by the Secretary of State in consultation with the Administrator of the United States Agency for International Development and the Secretary of Labor. Such criteria shall include—
(A)
a documented high prevalence of trafficking in persons within the country; and
(B)
demonstrated political motivation and sustained commitment by the government of such country to undertake meaningful measures to address severe forms of trafficking in persons, including prevention, protection of victims, and the enactment and enforcement of anti-trafficking laws against perpetrators.
(6) Suspension and termination of assistance
(A) In generalThe Secretary may suspend or terminate assistance provided under this subsection in whole or in part for a country or entity if the Secretary determines that—
(i)
the country or entity is engaged in activities that are contrary to the national security interests of the United States;
(ii)
the country or entity has engaged in a pattern of actions inconsistent with the criteria used to determine the eligibility of the country or entity, as the case may be; or
(iii)
the country or entity has failed to adhere to its responsibilities under the Compact.
(B) Reinstatement
The Secretary may reinstate assistance for a country or entity suspended or terminated under this paragraph only if the Secretary determines that the country or entity has demonstrated a commitment to correcting each condition for which assistance was suspended or terminated under subparagraph (A).
(Pub. L. 106–386, div. A, § 105A, as added Pub. L. 113–4, title XII, § 1202, Mar. 7, 2013, 127 Stat. 136.)
{30}
H.R. 3815 (114th) was a bill in the United States Congress.
A bill must be passed by both the House and Senate in identical form and then be signed by the President to become law.
This bill was introduced in the 114th Congress, which met from Jan 6, 2015 to Jan 3, 2017. Legislation not enacted by the end of a Congress is cleared from the books.
How to cite this information.
We recommend the following MLA-formatted citation when using the information you see here in academic work:
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GovTrack automatically collects legislative information from a variety of governmental and non-governmental sources. This page is sourced primarily from , the official portal of the United States Congress. is generally updated one day after events occur, and so legislative activity shown here may be one day behind. Data via the congress project.
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22 USC 7114: Efforts to end modern slavery Text contains those laws in effect on June 23, 2017
From Title 22-FOREIGN RELATIONS AND INTERCOURSECHAPTER 78-TRAFFICKING VICTIMS PROTECTION
Jump To: Source CreditReferences In TextCodification
§7114. Efforts to end modern slavery
(a) Actions by the Secretary of Defense
(1) In general
Not later than 90 days after December 23, 2016, the Secretary of Defense shall provide to the appropriate congressional committees a briefing on the policies and guidance of the Department of Defense with respect to the education and training on human slavery and the appropriate role of the United States Armed Forces in combatting trafficking in persons that is received by personnel of the Armed Forces, including uniformed personnel and civilians engaged in partnership with foreign nations.
(2) Elements
The briefing required under paragraph (1) shall address-
(A) resources available for Armed Forces personnel who become aware of instances of human slavery or trafficking in persons while deployed overseas; and
(B) guidance on the requirement to make official reports through the chain of command, the roles and responsibilities of military and civilian officials of the United States Armed Forces and host nations, circumstances in which members of the Armed Forces are authorized to take immediate action to prevent loss of life or serious injury, and the authority to use appropriate force to stop or prevent sexual abuse or exploitation of children.
(b) Grant authorization
The Secretary of State is authorized to make a grant or grants of funding to provide support for transformational programs and projects that seek to achieve a measurable and substantial reduction of the prevalence of modern slavery in targeted populations within partner countries (or jurisdictions thereof).
(c) Monitoring and evaluation
Any grantee shall-
(1) develop specific and detailed criteria for the monitoring and evaluation of supported projects;
(2) implement a system for measuring progress against baseline data that is rigorously designed based on international corporate and nongovernmental best practices;
(3) ensure that each supported project is regularly and rigorously monitored and evaluated, on a not less than biennial basis, by an independent monitoring and evaluation entity, against the specific and detailed criteria established pursuant to paragraph (1), and that the progress of the project towards its stated goals is measured by such entity against baseline data;
(4) support the development of a scientifically sound, representative survey methodology for measuring prevalence with reference to existing research and experience, and apply the methodology consistently to determine the baseline prevalence in target populations and outcomes in order to periodically assess progress in reducing prevalence; and
(5) establish, and revise on a not less than annual basis, specific and detailed criteria for the suspension and termination, as appropriate, of projects supported by the grantee that regularly or consistently fail to meet the criteria required by this section.
(d) Auditing
(1) In general
Any grantee shall be subject to the same auditing, recordkeeping, and reporting obligations required under subsections (e), (f), (g), and (i) of section 4413 of this title.
(2) Comptroller General audit authority
(A) In general
The Comptroller General of the United States may evaluate the financial transactions of the grantee as well as the programs or activities the grantee carries out pursuant to this section.
(B) Access to records
Any grantee shall provide the Comptroller General, or the Comptroller General's duly authorized representatives, access to such records as the Comptroller General determines necessary to conduct evaluations authorized by this section.
(e) Annual report
Any grant recipient shall submit a report to the Secretary of State annually and the Secretary shall transmit it to the appropriate congressional committees within 30 days. Such report shall include the names of each of the projects or sub-grantees receiving such funding pursuant to this section and the amount of funding provided for, along with a detailed description of, each such project.
(f) Rule of construction regarding availability of fiscal year 2016 appropriations
The enactment of this section is deemed to meet the condition of the first proviso of paragraph (2) of section 7060(f) of the Department of State, Foreign Operations, and Related Appropriations 1 Act, 2016 (division K of Public Law 114–113), and the funds referred to in such paragraph shall be made available in accordance with, and for the purposes set forth in, such paragraph.
(g) Authorization of appropriations; sunset
(1) Authorization of appropriations for fiscal years 2017 through 2020
There is authorized to be appropriated to the Department of State for the purpose of making a grant or grants authorized under this section, for each fiscal year from 2017 through 2020, $37,500,000.
(2) Sunset
The authorities of subsections (b) through (f) shall expire on September 30, 2020.
(h) Comptroller General review of existing programs
(1) In general
Not later than September 30, 2018, and September 30, 2020, the Comptroller General of the United States shall submit to Congress a report on all of the programs conducted by the Department of State, the United States Agency for International Development, the Department of Labor, the Department of Defense, and the Department of the Treasury that address human trafficking and modern slavery, including a detailed analysis of the effectiveness of such programs in limiting human trafficking and modern slavery and specific recommendations on which programs are not effective at reducing the prevalence of human trafficking and modern slavery and how the funding for such programs may be redirected to more effective efforts.
(2) Consideration of report
The Comptroller General of the United States shall brief the appropriate congressional committees on the report submitted under paragraph (1). The appropriate congressional committees shall review and consider the reports and shall, as appropriate, consider modifications to authorization levels and programs within the jurisdiction of such committees to address the recommendations made in the report.
(i) Appropriate congressional committees defined
In this section, the term "appropriate congressional committees" means-
(1) the Committee on Foreign Relations, the Committee on Armed Services, and the Committee on Appropriations of the Senate; and
(2) the Committee on Foreign Affairs, the Committee on Armed Services, and the Committee on Appropriations of the House of Representatives.
( Pub. L. 114–328, div. A, title XII, §1298, Dec. 23, 2016, 130 Stat. 2563 .)
References in Text
Section 7060(f)(2) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016, referred to in subsec. (f), is section 7060(f)(2) of div. K of Pub. L. 114–113, Dec. 18, 2015, 129 Stat. 2809 , which is not classified to the Code.
Codification
Section was enacted as part of the National Defense Authorization Act for Fiscal Year 2017, and not as part of the Trafficking Victims Protection Act of 2000 which comprises this chapter.
1 So in original. Probably should be preceded by "Programs".
_____________________-
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1 U.S. Code § 113 - “Little and Brown’s” edition of laws and treaties; slip laws; Treaties and Other International Acts Series; admissibility in evidence
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
• Authorities (CFR)
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The edition of the laws and treaties of the United States, published by Little and Brown, and the publications in slip or pamphlet form of the laws of the United States issued under the authority of the Archivist of the United States, and the Treaties and Other International Acts Series issued under the authority of the Secretary of State shall be competent evidence of the several public and private Acts of Congress, and of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and international agreements other than treaties, as the case may be, therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof.
(July 30, 1947, ch. 388, 61 Stat. 636; Pub. L. 89–497, § 1, July 8, 1966, 80 Stat. 271; Pub. L. 98–497, title I, § 107(d), Oct. 19, 1984, 98 Stat. 2291.)
{33}
22 USC 7114: Efforts to end modern slavery Text contains those laws in effect on June 24, 2017
From Title 22-FOREIGN RELATIONS AND INTERCOURSECHAPTER 78-TRAFFICKING VICTIMS PROTECTION
Jump To: Source CreditReferences In TextCodification
§7114. Efforts to end modern slavery
(a) Actions by the Secretary of Defense
(1) In general
Not later than 90 days after December 23, 2016, the Secretary of Defense shall provide to the appropriate congressional committees a briefing on the policies and guidance of the Department of Defense with respect to the education and training on human slavery and the appropriate role of the United States Armed Forces in combating trafficking in persons that is received by personnel of the Armed Forces, including uniformed personnel and civilians engaged in partnership with foreign nations.
(2) Elements
The briefing required under paragraph (1) shall address-
(A) resources available for Armed Forces personnel who become aware of instances of human slavery or trafficking in persons while deployed overseas; and
(B) guidance on the requirement to make official reports through the chain of command, the roles and responsibilities of military and civilian officials of the United States Armed Forces and host nations, circumstances in which members of the Armed Forces are authorized to take immediate action to prevent loss of life or serious injury, and the authority to use appropriate force to stop or prevent sexual abuse or exploitation of children.
(b) Grant authorization
The Secretary of State is authorized to make a grant or grants of funding to provide support for transformational programs and projects that seek to achieve a measurable and substantial reduction of the prevalence of modern slavery in targeted populations within partner countries (or jurisdictions thereof).
(c) Monitoring and evaluation
Any grantee shall-
(1) develop specific and detailed criteria for the monitoring and evaluation of supported projects;
(2) implement a system for measuring progress against baseline data that is rigorously designed based on international corporate and nongovernmental best practices;
(3) ensure that each supported project is regularly and rigorously monitored and evaluated, on a not less than biennial basis, by an independent monitoring and evaluation entity, against the specific and detailed criteria established pursuant to paragraph (1), and that the progress of the project towards its stated goals is measured by such entity against baseline data;
(4) support the development of a scientifically sound, representative survey methodology for measuring prevalence with reference to existing research and experience, and apply the methodology consistently to determine the baseline prevalence in target populations and outcomes in order to periodically assess progress in reducing prevalence; and
(5) establish, and revise on a not less than annual basis, specific and detailed criteria for the suspension and termination, as appropriate, of projects supported by the grantee that regularly or consistently fail to meet the criteria required by this section.
(d) Auditing
(1) In general
Any grantee shall be subject to the same auditing, recordkeeping, and reporting obligations required under subsections (e), (f), (g), and (i) of section 4413 of this title.
(2) Comptroller General audit authority
(A) In general
The Comptroller General of the United States may evaluate the financial transactions of the grantee as well as the programs or activities the grantee carries out pursuant to this section.
(B) Access to records
Any grantee shall provide the Comptroller General, or the Comptroller General's duly authorized representatives, access to such records as the Comptroller General determines necessary to conduct evaluations authorized by this section.
(e) Annual report
Any grant recipient shall submit a report to the Secretary of State annually and the Secretary shall transmit it to the appropriate congressional committees within 30 days. Such report shall include the names of each of the projects or sub-grantees receiving such funding pursuant to this section and the amount of funding provided for, along with a detailed description of, each such project.
(f) Rule of construction regarding availability of fiscal year 2016 appropriations
The enactment of this section is deemed to meet the condition of the first proviso of paragraph (2) of section 7060(f) of the Department of State, Foreign Operations, and Related Appropriations 1 Act, 2016 (division K of Public Law 114–113), and the funds referred to in such paragraph shall be made available in accordance with, and for the purposes set forth in, such paragraph.
(g) Authorization of appropriations; sunset
(1) Authorization of appropriations for fiscal years 2017 through 2020
There is authorized to be appropriated to the Department of State for the purpose of making a grant or grants authorized under this section, for each fiscal year from 2017 through 2020, $37,500,000.
(2) Sunset
The authorities of subsections (b) through (f) shall expire on September 30, 2020.
(h) Comptroller General review of existing programs
(1) In general
Not later than September 30, 2018, and September 30, 2020, the Comptroller General of the United States shall submit to Congress a report on all of the programs conducted by the Department of State, the United States Agency for International Development, the Department of Labor, the Department of Defense, and the Department of the Treasury that address human trafficking and modern slavery, including a detailed analysis of the effectiveness of such programs in limiting human trafficking and modern slavery and specific recommendations on which programs are not effective at reducing the prevalence of human trafficking and modern slavery and how the funding for such programs may be redirected to more effective efforts.
(2) Consideration of report
The Comptroller General of the United States shall brief the appropriate congressional committees on the report submitted under paragraph (1). The appropriate congressional committees shall review and consider the reports and shall, as appropriate, consider modifications to authorization levels and programs within the jurisdiction of such committees to address the recommendations made in the report.
(i) Appropriate congressional committees defined
In this section, the term "appropriate congressional committees" means-
(1) the Committee on Foreign Relations, the Committee on Armed Services, and the Committee on Appropriations of the Senate; and
(2) the Committee on Foreign Affairs, the Committee on Armed Services, and the Committee on Appropriations of the House of Representatives.
( Pub. L. 114–328, div. A, title XII, §1298, Dec. 23, 2016, 130 Stat. 2563 .)
References in Text
Section 7060(f)(2) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016, referred to in subsec. (f), is section 7060(f)(2) of div. K of Pub. L. 114–113, Dec. 18, 2015, 129 Stat. 2809 , which is not classified to the Code.
Codification
Section was enacted as part of the National Defense Authorization Act for Fiscal Year 2017, and not as part of the Trafficking Victims Protection Act of 2000 which comprises this chapter.
1 So in original. Probably should be preceded by "Programs".
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18 U.S. Code § 2382 - Misprision of treason
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
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Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)
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37 U.S. Code Chapter 10 - PAYMENTS TO MISSING PERSONS
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
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• § 551 - Definitions
• § 552 - Pay and allowances; continuance while in a missing status; limitations
• § 553 - Allotments; continuance, suspension, initiation, resumption, or increase while in a missing status; limitations
• § 554 - Renumbered § 484]
• § 555 - Secretarial review
• § 556 - Secretarial determinations
• § 557 - Settlement of accounts
• § 558 - Income tax deferment
• § 559 - Benefits for members held as captives
§ 551 - Definitions
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
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• Authorities (CFR)
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In this chapter:
(1) The term “dependent”, with respect to a member of a uniformed service, means—
(A)
his spouse;
(B)
his unmarried child (including an unmarried dependent stepchild or adopted child) under 21 years of age;
(C)
his dependent mother or father;
(D)
a dependent designated in official records; and
(E)
a person determined to be dependent by the Secretary concerned, or his designee.
(2) The term “missing status” means the status of a member of a uniformed service who is officially carried or determined to be absent in a status of—
(A)
missing;
(B)
missing in action;
(C)
interned in a foreign country;
(D)
captured, beleaguered, or besieged by a hostile force; or
(E)
detained in a foreign country against his will.
(3) The term “pay and allowances” means—
(A)
basic pay;
(B)
special pay;
(C)
incentive pay;
(D)
basic allowance for housing;
(E)
basic allowance for subsistence; and
(F)
station per diem allowances for not more than 90 days.
(Added Pub. L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 625; amended Pub. L. 99–145, title XIII, § 1301(g), Nov. 8, 1985, 99 Stat. 737; Pub. L. 100–26, § 8(e)(10), Apr. 21, 1987, 101 Stat. 287; Pub. L. 105–85, div. A, title VI, § 603(d)(1)(D), Nov. 18, 1997, 111 Stat. 1782.)
§ 552 - Pay and allowances; continuance while in a missing status; limitations
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
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• Authorities (CFR)
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(a) A member of a uniformed service who is on active duty or performing inactive-duty training, and who is in a missing status, is—
(1)
for the period he is in that status, entitled to receive or have credited to his account the same pay and allowances, as defined in this chapter, to which he was entitled at the beginning of that period or may thereafter become entitled; and
(2)
for the period, not to exceed one year, required for his hospitalization and rehabilitation after termination of that status, under regulations prescribed by the Secretaries concerned, with respect to incentive pay, considered to have satisfied the requirements of section 301 of this title so as to entitle him to a continuance of that pay.
However, a member who is performing full-time training duty or other full-time duty without pay, or inactive-duty training with or without pay, is entitled to the pay and allowances to which he would have been entitled if he had been on active duty with pay. Notwithstanding section 1523 of title 10 or any other provision of law, the promotion of a member while he is in a missing status is fully effective for all purposes.
(b) The expiration of a member’s term of service while he is in a missing status does not end his entitlement to pay and allowances under subsection (a). Notwithstanding the death of a member while in a missing status, entitlement to pay and allowances under subsection (a) ends on the date—
(1)
the Secretary concerned receives evidence that the member is dead; or
(2)
that his death is prescribed or determined under section 555 of this title or under chapter 76 of title 10.
(c)
A member is not entitled to pay and allowances under subsection (a) for a period during which he is officially determined to be absent from his post of duty without authority, and he is indebted to the United States for payments from amounts credited to his account for that period.
(d)
A member who is performing full-time training duty or inactive-duty training is entitled to the benefits of this section only when he is officially determined to be in a missing status that results from the performance of duties prescribed by competent authority.
(e)
A member in a missing status who is continued in that status under section 555 of this title or under chapter 76 of title 10 is entitled to be credited with pay and allowances under subsection (a).
(Added Pub. L. 89–554, § 5(b), Sept. 6, 1966, 80 Stat. 625; amended Pub. L. 92–169, § 1, Nov. 24, 1971, 85 Stat. 489; Pub. L. 92–482, Oct. 12, 1972, 86 Stat. 796; Pub. L. 93–26, § 1, Apr. 27, 1973, 87 Stat. 26; Pub. L. 102–25, title VII, § 702(b)(1), (c), Apr. 6, 1991, 105 Stat. 117; Pub. L. 104–106, div. A, title V, § 569(c)(2), Feb. 10, 1996, 110 Stat. 351.)
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38 U.S.C. § 1712 - U.S. Code - Unannotated Title 38. Veterans' Benefits 1712. Dental care; drugs and medicines for certain disabled veterans; § vaccines
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Outpatient dental services and treatment, and related dental appliances, shall be furnished under this section only for a dental condition or disability--
which is service-connected and compensable in degree;
which is service-connected, but not compensable in degree, but only if--
the dental condition or disability is shown to have been in existence at the time of the veteran's discharge or release from active military, naval, or air service;
the veteran had served on active duty for a period of not less than 180 days or, in the case of a veteran who served on active duty during the Persian Gulf War, 90 days immediately before such discharge or release;
application for treatment is made within 180 days after such discharge or release, except that (I) in the case of a veteran who reentered active military, naval, or air service within 90 days after the date of such veteran's prior discharge or release from such service, application may be made within 180 days from the date of such veteran's subsequent discharge or release from such service, and (II) if a disqualifying discharge or release has been corrected by competent authority, application may be made within 180 days after the date of correction; and
the veteran's certificate of discharge or release from active duty does not bear a certification that the veteran was provided, within the 90-day period immediately before the date of such discharge or release, a complete dental examination (including dental X-rays) and all appropriate dental services and treatment indicated by the examination to be needed;
which is a service-connected dental condition or disability due to combat wounds or other service trauma, or of a former prisoner of war;
which is associated with and is aggravating a disability resulting from some other disease or injury which was incurred in or aggravated by active military, naval, or air service;
which is a non-service-connected condition or disability of a veteran for which treatment was begun while such veteran was receiving hospital care under this chapter and such services and treatment are reasonably necessary to complete such treatment;
from which a veteran who is a former prisoner of war is suffering;
from which a veteran who has a service-connected disability rated as total is suffering; or
the treatment of which is medically necessary (i) in preparation for hospital admission, or (ii) for a veteran otherwise receiving care or services under this chapter.
The Secretary concerned shall at the time a member of the Armed Forces is discharged or released from a period of active military, naval, or air service of not less than 180 days or, in the case of a veteran who served on active duty during the Persian Gulf War, 90 days provide to such member a written explanation of the provisions of clause (B) of paragraph (1) of this subsection and enter in the service records of the member a statement signed by the member acknowledging receipt of such explanation (or, if the member refuses to sign such statement, a certification from an officer designated for such purpose by the Secretary concerned that the member was provided such explanation).
The total amount which the Secretary may expend for furnishing, during any twelve-month period, outpatient dental services, treatment, or related dental appliances to a veteran under this section through private facilities for which the Secretary has contracted under clause (1), (2), or (5) of section 1703(a) of this title may not exceed $1,000 unless the Secretary determines, prior to the furnishing of such services, treatment, or appliances and based on an examination of the veteran by a dentist employed by the Department (or, in an area where no such dentist is available, by a dentist conducting such examination under a contract or fee arrangement), that the furnishing of such services, treatment, or appliances at such cost is reasonably necessary.
Except as provided in subparagraph (B) of this paragraph, in any year in which the President's Budget for the fiscal year beginning October 1 of such year includes an amount for expenditures for contract dental care under the provisions of this subsection and section 1703 of this title during such fiscal year in excess of the level of expenditures made for such purpose during fiscal year 1978, the Secretary shall, not later than February 15 of such year, submit a report to the appropriate committees of the Congress justifying the requested level of expenditures for contract dental care and explaining why the application of the criteria prescribed in section 1703 of this title for contracting with private facilities and in the second sentence of section 1710(c) of this title for furnishing incidental dental care to hospitalized veterans will not preclude the need for expenditures for contract dental care in excess of the fiscal year 1978 level of expenditures for such In any case in which the amount included in the President's purpose. Budget for any fiscal year for expenditures for contract dental care under such provisions is not in excess of the level of expenditures made for such purpose during fiscal year 1978 and the Secretary determines after the date of submission of such budget and before the end of such fiscal year that the level of expenditures for such contract dental care during such fiscal year will exceed the fiscal year 1978 level of expenditures, the Secretary shall submit a report to the appropriate committees of the Congress containing both a justification (with respect to the projected level of expenditures for such fiscal year) and an explanation as required in the preceding sentence in the case of a Any report submitted report submitted pursuant to such sentence. pursuant to this paragraph shall include a comment by the Secretary on the effect of the application of the criteria prescribed in the second sentence of section 1710(c) of this title for furnishing incidental dental care to hospitalized veterans.
A report under subparagraph (A) of this paragraph with respect to a fiscal year is not required if, in the documents submitted by the Secretary to the Congress in justification for the amounts included for Department programs in the President's Budget, the Secretary specifies with respect to contract dental care described in such subparagraph--
the actual level of expenditures for such care in the fiscal year preceding the fiscal year in which such Budget is submitted;
a current estimate of the level of expenditures for such care in the fiscal year in which such Budget is submitted; and
the amount included in such Budget for such care.
Dental services and related appliances for a dental condition or disability described in paragraph (1)(B) of subsection (a) shall be furnished on a one-time completion basis, unless the services rendered on a one-time completion basis are found unacceptable within the limitations of good professional standards, in which event such additional services may be afforded as are required to complete professionally acceptable treatment.
Dental appliances, wheelchairs, artificial limbs, trusses, special clothing, and similar appliances to be furnished by the Secretary under this section may be procured by the Secretary either by purchase or by manufacture, whichever the Secretary determines may be advantageous and reasonably necessary.
The Secretary shall furnish to each veteran who is receiving additional compensation or allowance under chapter 11 of this title, or increased pension as a veteran of a period of war, by reason of being permanently housebound or in need of regular aid and attendance, such drugs and medicines as may be ordered on prescription of a duly licensed physician as specific therapy in the treatment of any The Secretary shall illness or injury suffered by such veteran. continue to furnish such drugs and medicines so ordered to any such veteran in need of regular aid and attendance whose pension payments have been discontinued solely because such veteran's annual income is greater than the applicable maximum annual income limitation, but only so long as such veteran's annual income does not exceed such maximum annual income limitation by more than $1,000.
In order to assist the Secretary of Health and Human Services in carrying out national immunization programs under other provisions of law, the Secretary may authorize the administration of immunizations to eligible veterans who voluntarily request such immunizations in connection with the provision of care for a disability Any such under this chapter in any Department health care facility. immunization shall be made using vaccine furnished by the Secretary of For such Health and Human Services at no cost to the Department. purpose, notwithstanding any other provision of law, the Secretary of Health and Human Services may provide such vaccine to the Department at no cost. Section 7316 of this title shall apply to claims alleging negligence or malpractice on the part of Department personnel granted immunity under such section.
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50 USC 4102: Jurisdiction of Commission Text contains those laws in effect on June 24, 2017
From Title 50-WAR AND NATIONAL DEFENSECHAPTER 51-WAR CLAIMSSUBCHAPTER I-TITLE I OF WAR CLAIMS ACT OF 1948
Jump To: Source CreditCodification
§4102. Jurisdiction of Commission
The Commission shall have jurisdiction to receive and adjudicate according to law claims as hereinafter provided.
(July 3, 1948, ch. 826, title I, §3, 62 Stat. 1241 .)
Codification
Section was formerly classified to section 2002 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.
Transfer of Functions
For provisions transferring Foreign Claims Settlement Commission of the United States to Department of Justice, as a separate agency, see section 1622a et seq. of Title 22, Foreign Relations and Intercourse.
War Claims Commission, including offices of its members, abolished and functions transferred to Foreign Claims Settlement Commission of the United States by Reorg. Plan No. 1 of 1954, §§2, 4, eff. July 1, 1954, 19 F.R. 3985, 68 Stat. 1279, set out in the Appendix to Title 5, Government Organization and Employees. See, also, section 4101 of this title and notes thereunde
§4102. Jurisdiction of Commission § 4102 - U.S. Code - Unannotated Title 50. War and National Defense §
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The Commission shall have jurisdiction to receive and adjudicate according to law claims as hereinafter provided.
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§4103. Claims of employees of contractors § 4103 - U.S. Code - Unannotated Title 50. War and National Defense §
Payment by Secretary of Labor of certain claims; execution of releases
The Secretary of Labor is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any person specified in section 101(a) of the Act entitled “An Act to provide benefits for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes”, approved December 2, 1942, as amended [1701(a) 42 U.S.C.A. §], or by the legal representative of any such person who may have died, for the amount by which (1) the total sum which would have been payable to such person by his employer (not including any payments for overtime), if such person's contract of employment had been in effect and he had been paid under it for the entire period during which he was entitled to receive benefits under section 101(b) of such Act [1701(b) 42 U.S.C.A. §], exceeds (2) the entire amount creditable to such person's account for such period under the provisions of such section plus any amounts paid to such person by such employer for such period or recovered by such person in any legal action against such employer based upon such person's right against such employer for such period under the contract of employment, including payments in settlement of the liability of the No claim shall be employer arising under or out of such contract. allowed to any person under the provisions of this section unless such person executes a full release to the employer and to the United States in respect to the liability of the employer arising under or out of the contract of employment, except liability for workmen's compensation benefits under the Act of August 16, 1941, as amended [1651 et seq. 42 U.S.C.A. §] or detention or other benefits paid under the Act of December 2, 1942, as amended [1701 et seq. 42 U.S.C.A. §]. Any claim allowed under the provisions of this section shall be certified by the Secretary of Labor to the Secretary of the Treasury for payment out of the War Claims Fund established by section 4110 of this title.
Cancellation of employees' obligations; repayment to employees
The Secretary of State is authorized and directed to cancel any obligation to the United States of any person specified in section 101(a) of such Act of December 2, 1942 [1701(a) 42 U.S.C.A. §], to pay any sum which may have been advanced to or on behalf of any such person by the Department of State for the purpose of paying the costs of food and medical services furnished to such person during his period of internment by the Imperial Japanese Government or for the purpose of paying transportation or other expenses of repatriation.
The Secretary of Labor is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by any person specified in section 101(a) of such Act of December 2, 1942 [1701(a) 42 U.S.C.A. §], for the repayment of any sum which may have been paid by such person to the Department of State in settlement of any obligation of the type referred Any claim allowed under the to in paragraph (1) of this subsection. provisions of this paragraph shall be certified by the Secretary of Labor to the Secretary of the Treasury for payment out of the War Claims Fund established by section 4110 of this title.
Omitted
4104. Internees § 4104 - U.S. Code - Unannotated Title 50. War and National Defense §
“ (a)Civilian American citizen” defined
As used in subsections (b) and (f) of this section, the term “civilian American citizen” means any person who, being then a citizen of the United States, was captured by the Imperial Japanese Government on or after December 7, 1941, at Midway, Guam, Wake Island, the Philippine Islands, or any Territory or possession of the United States attacked or invaded by such government, or while in transit to or from any such place, or who went into hiding at any such place in order to avoid capture or internment by such government; except (1) a person who at any time voluntarily gave aid to, collaborated with, or in any manner served such government, or (2) a person who at the time of his capture or entrance into hiding was a regularly appointed, enrolled, enlisted, or inducted member of any military or naval force.
Payment of detention benefits
The Commission is authorized to receive, adjudicate according to law, and provide for the payment of any claim filed by, or on behalf of, any civilian American citizen for detention benefits for any period of time subsequent to December 6, 1941, during which he was held by the Imperial Japanese Government as a prisoner, internee, hostage, or in any other capacity, or remained in hiding to avoid being captured or interned by such Imperial Japanese Government.
Amount of detention benefits
The detention benefit allowed to any person under the provisions of subsection (b) shall be at the rate of $60 for each calendar month during which such person was at least eighteen years of age and at the rate of $25 per month for each calendar month during which such person was less than eighteen years of age.
Persons entitled to detention benefits
The detention benefits allowed under subsection (b) of this section shall be allowed to the person entitled thereto, or, in the event of his death, only to the following persons:
Widow or husband if there is no child or children of the deceased;
Widow or husband and child or children of the deceased, one-half to the widow or husband and the other half to the child or children in equal shares;
Child or children of the deceased (in equal shares) if there is no widow or husband; and
Parents (in equal shares) if there is no husband, or child.
Certification of claims
Any claim allowed by the Commission under this section (except under subsections (g) and (i)) shall be certified to the Secretary of the Treasury for payment out of the war claims funds established by section 4110 of this title, and shall be payable by the Secretary of the Treasury to the person entitled thereto; except that where the person entitled to payment is under any legal disability, any part of the amount payable may, in the discretion of the Commission, be paid, for the use of the claimant, to the natural or legal guardian, committee, conservator, or curator of the claimant, or, if there is no such guardian, committee, conservator, or curator, then the Commission may, in its discretion, make payment to any other person, including the spouse of such claimant, whom the Commission may determine is vested with the care of the claimant or his estate for the use and benefit of such claimant or estate; and if such person is a minor, any part of the amount payable may, in the discretion of the Commission, be paid to such minor.
Application of War Hazards Compensation Act; factors for determining benefits; effective date
Except as otherwise provided in this subsection, the provisions of titles I and II of the Act entitled “An Act to provide benefits for the injury, disability, death, or enemy detention of employees of contractors with the United States, and for other purposes”, approved December 2, 1942, as amended [1701 et seq 42 U.S.C.A. §], are extended and shall apply with respect to the injury, disability, or death resulting from injury of a civilian American citizen occurring while he was held by or in hiding from the Imperial Japanese Government, to the same extent as if such civilian American citizen were an employee within the purview of such Act of December 2, 1942, as amended.
For the purpose of determining the benefits extended and made applicable by paragraph (1)--
the average weekly wage of any such civilian American citizen, whether employed, self-employed, or not employed, shall be deemed to have been $37.50;
the provisions of such Act [ 1701 et seq. 42 U.S.C.A. §], shall be applicable whether or not any such civilian American citizen was employed;
notice of injury or death shall not be required; and limitation provisions with respect to the filing of claims for injury, disability, or death shall not begin to run until July 3, 1948; and
the monthly compensation in cases involving partial disability shall be determined by the percentage the degree of partial disability bears to total disability and shall not be determined with respect to the extent of loss of wage earning capacity.
The following provisions of such Act of December 2, 1942, as amended [ 1701 et seq. 42 U.S.C.A. §], shall not apply in the case of such civilian American citizens: The last sentence of section 101(a), section 101(b), section 101(d) [1701(a) 42 U.S.C.A. §, (b), (d)], section 104 [1704 42 U.S.C.A. §], and section 105 [1705 42 U.S.C.A. §].
Rights or benefits which, under this subsection, are to be determined with reference to other provisions of law shall be determined with reference to such provisions of law as in force on January 3, 1948.
The money benefit for disability or death shall be paid only to the person entitled thereto, or to his legal or natural guardian if he has one, and shall not upon death of the person so entitled survive for the benefit of his estate or any other person.
The benefit of a minor or of an incompetent person who has no natural or legal guardian may, in the discretion of the Secretary of Labor, be paid, in whole or in such part as he may determine for and on behalf of such minor or incompetent directly to the person or institution caring for, supporting, or having custody of such minor or incompetent.
No person, except a widow or a child, shall be entitled to benefits for disability with respect to himself, and to death benefits on account of the death of another.
If a civilian American citizen or his dependent receives or has received from the United States any payments on account of the same injury or death, or from his employer, in the form of wages, or payments in lieu of wages, or in any form of support or compensation (including workmen's compensation) in respect to the same objects, the benefits under this section shall be diminished by the amount of such payments in the following manner: (A) Benefits on account of injury or disability shall be reduced by the amount of payments to the injured person on account of the same injury or disability; and (B) benefits on account of death shall be reduced by the amount of payments to the dependents of the deceased civilian American citizen on account of the same death.
This subsection shall take effect as of December 7, 1941, and the right of individuals to benefits shall be held to have begun to accrue as though this subsection had been in effect as of such date.
No benefits provided by this subsection for injury, disability, or death shall accrue to any person who, without regard to this subsection, is entitled to or has received benefits for the same injury, disability, or death under such Act of December 2, 1942, as amended [1701 42 U.S.C.A. §].
No benefits provided by this subsection shall accrue to any person to whom benefits have been paid, or are payable, under the Federal Employees' Compensation Act, or any extension thereof, by reason of disability or death of an employee of the United States suffered after capture, detention, or other restraint by an enemy of the United States, when such disability or death is deemed, in the administration of the Federal Employees' Compensation Act to have resulted from injury occurring while in the performance of duty, under subsection (b) of section 5 of the Act entitled “An Act to amend the Act entitled ‘An Act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes’, as amended”, approved July 28, 1945, as amended.
Benefits for civilian internees in Korea, and dependents; time
As used in this subsection, the term “civilian American citizens” means any person who, being then a citizen of the United States, was captured in Korea on or after June 25, 1950, by any hostile force with which the Armed Forces of the United States were actually engaged in armed conflict subsequent to such date and prior to August 21, 1954, or who went into hiding in Korea in order to avoid capture or internment by any such hostile force; except (A) a person who at any time voluntarily, knowingly, and without duress, gave aid to or collaborated with or in any manner served any such hostile force, or (B) a regularly appointed, enrolled, enlisted, or inducted member of the Armed Forces of the United States.
The Commission is authorized to receive and to determine, according to law, the amount and validity, and provide for the payment of any claim filed by, or on behalf of, any civilian American citizen for detention benefits for any period of time subsequent to June 25, 1950, during which he was held by any such hostile force as a prisoner, internee, hostage, or in any other capacity, or remained in hiding to avoid being captured or interned by any such hostile force.
The detention benefit allowed to any person under the provisions of paragraph (2) of this subsection shall be at the rate of $60 for each calendar month during which such person was at least eighteen years of age and at the rate of $25 per month for each calendar month during which such person was less than eighteen years of age.
The detention benefits allowed under paragraph (2) of this subsection shall be allowed to the person entitled thereto, or, in the event of his death, only to the following persons:
widow or husband if there is no child or children of the deceased;
widow or dependent husband and child or children of the deceased, one-half to the widow or dependent husband and the other half to the child or children in equal shares;
child or children of the deceased (in equal shares) if there is no widow or dependent husband.
Any claim allowed by the Commission under this subsection shall be certified to the Secretary of the Treasury for payment out of funds appropriated pursuant to this subsection, and shall be paid by the Secretary of the Treasury to the person entitled thereto, except that where any person entitled to payment under this subsection is under any legal disability, payment may be made in accordance with the provisions of subsection (e) of this section.
Each claim filed under this subsection must be filed not later than one year from whichever of the following dates last occurs:
August 21, 1954;
The date the civilian American citizen by whom the claim is filed returned to the jurisdiction of the United States; or
The date upon which the Commission, at the request of a potentially eligible survivor, makes a determination that the civilian American citizen has actually died or may be presumed to be dead, in the case of any civilian American citizen who has not returned to the jurisdiction of the United States.
The Commission shall complete its determinations with respect to each claim filed under this subsection at the earliest practicable date, but in no event later than one year after the date on which such claim was filed.
There are authorized to be appropriated such amounts as may be necessary to carry out the purposes of this subsection, including necessary administrative expenses.
The Commission shall determine, from time to time, the share of its administrative expenses attributable to the performance of its functions under this subsection and make the appropriate adjustments in its accounts, and determinations and adjustments made pursuant to this subparagraph shall be final and conclusive.
Benefits for Guamanians killed or captured at Wake Island on or after December 7, 1941
In the case of any Guamanian killed or captured by the Imperial Japanese Government on or after December 7, 1941, at Wake Island, benefits shall be granted under subsections (a) through (f) of this section in the same manner and to the same extent as apply in the case Claims for of civilian American citizens so killed or captured. benefits under subsections (a) through (e) of this section must be filed within six months after August 31, 1962, and the time limitation applicable to any individual by subsection (f) shall not begin to run until August 31, 1962, with respect to any individual who is entitled to The preceding such benefits solely by reason of this subsection. sentence shall not be construed to affect the right of any individual to receive such benefits with respect to any period prior to August 31, 1962.
Detention benefits for civilian internees in Southeast Asia; definitions; authority of Commission; claim for benefits; rate of compensation; persons entitled to payments; certification for payment; filing date; determination of claims; appropriations
As used in this subsection--
the term “ Vietnam conflict” relates to the period beginning on February 28, 1961, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress; and
the term “civilian American citizen” means any person who, being then a citizen of the United States, was captured in Southeast Asia during the Vietnam conflict by any force hostile to the United States, or who went into hiding in Southeast Asia, in order to avoid capture or internment by any such hostile force, except (i) a person who voluntarily, knowingly, and without duress, gave aid to or collaborated with or in any manner served any such hostile force, or (ii) a regularly appointed, enrolled, enlisted, or inducted member of the Armed Forces of the United States.
The Commission is authorized to receive and to determine, according to law, the amount and validity, and provide for the payment of any claim filed by, or on behalf of, any civilian American citizen for detention benefits for any period of time subsequent to February 27, 1961, during which he was held by any such hostile force as a prisoner, internee, hostage, or in any other capacity, or remained in hiding to avoid capture or internment by any such hostile force.
The detention benefits allowed under paragraph (2) of this subsection shall be at the rate of $150 for each calendar month.
The detention benefits allowed under paragraph (2) of this subsection shall be allowed to the civilian American citizen entitled thereto, or, in the event of his death, only to the following persons:
the widow or husband if there is no child or children of the deceased;
the widow or dependent husband and child or children of the deceased, one-half to the widow or dependent husband and the other half to the child or children in equal shares;
the child or children of the deceased in equal shares if there is no widow or dependent husband.
Any claim allowed by the Commission under this subsection shall be certified to the Secretary of the Treasury for payment out of funds appropriated pursuant to this subsection, and shall be paid to the person entitled thereto, except that if a person entitled to payment under this section is under any legal disability, payment shall be made in accordance with the provisions of subsection (e) of this section.
Each claim filed under this section must be filed not later than three years from whichever of the following dates last occurs:
June 24, 1970;
the date the civilian American citizen by whom the claim is filed returned to the jurisdiction of the United States; or
the date upon which the Commission, at the request of a potentially eligible survivor, makes a determination that the civilian American citizen has actually died or may be presumed to be dead, in the case of any civilian American citizen who has not returned to the jurisdiction of the United States.
The Commission shall complete its determinations for each claim filed under this subsection at the earliest practicable date, but not later than one year after the date on which such claim was filed.
There are authorized to be appropriated such amounts as may be necessary to carry out the purposes of this subsection, including necessary administrative expenses.
Ending the Vietnam War, 1969–1973
President Richard M. Nixon assumed responsibility for the Vietnam War as he swore the oath of office on January 20, 1969. He knew that ending this war honorably was essential to his success in the presidency. He expected that the American people would give him a year to end U.S. involvement in the war, and he expected to succeed during that time—believing that his experience in foreign relations, his toughness, and his willingness to bring to bear military and political pressure on North Vietnam would yield a settlement in the public negotiations just opening in Paris.
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President Richard M. Nixon and President Thieu at Midway, June 1969. (Nixon Presidential Library)
In his first months in office, Nixon directed the U.S. military to increase its pressure on the battlefield, while ordering the secret B–52 bombings of North Vietnamese base camps in Cambodia—the “Menu bombings”—as a signal of his willingness to further escalate the war. He expected to complement this military pressure with conciliatory negotiating terms in the newly begun negotiations, and with diplomatic pressure on the Soviet Union, hoping the Soviet Union would encourage their North Vietnamese allies to engage in serious negotiations. These forms of pressure, however, brought him no closer to ending the war. In order to buy time with the American people, Nixon began to withdraw forces from Vietnam, meeting with South Vietnam’s President Nguyen Van Thieu on Midway Island on June 8 to announce the first increment of redeployment. From that point on, the U.S. troop withdrawal never ceased. As U.S. troop strength and capabilities declined, the United States worked toward building South Vietnam’s military capacity through a program known as “Vietnamization.” It would remain a constant question over the remaining years of the administration, whether the South Vietnamese could build the combat capability, logistics and planning capacity, and leadership at the national and military levels to face the North Vietnamese on their own.
It quickly became apparent that the public peace talks in Paris were being used as propaganda theater by both sides, and that any productive negotiations would have to be done in private. On August 4, the President’s Assistant for National Security Affairs Henry Kissinger conducted his first private session with the North Vietnamese leadership. He would meet with North Vietnamese Politburo member Le Duc Tho intermittently over the following months, with no apparent progress toward a settlement.
In the fall of 1969, disappointed with the lack of any visible results from this strategy, Nixon and Kissinger directed an extensive planning effort assessing the possibility of coercing the North Vietnamese into negotiations through a series of “short, sharp blows” inflicted by air and naval forces. The political-military planning included a cell of National Security Council staff members examining strategic issues, and a military planning team comprised of Joint Staff, Pacific Command (PACOM), and Military Assistance Command Vietnam (MACV) officers working at MACV Headquarters in Saigon. Nixon met with the Joint Chiefs of Staff (JCS) on October 11, and it became clear that the planning had satisfied neither the White House nor the JCS. With American casualties on the decline, the anti-war movement still a powerful force, and no satisfactory political-military solution in sight, Nixon turned away from that option to deliver the “silent majority” speech on November 3, 1969, rallying the American people toward patient support for a protracted war. The administration would continue its dual strategy of Vietnamization and negotiation.
In March 1970 the fall of Prince Norodom Sihanouk in Cambodia destroyed the fragile neutrality of that state, as his successor Lon Nol demanded the North Vietnamese withdraw from their base camps along the South Vietnamese border. The North Vietnamese reacted by extending their presence toward the west. Nixon responded by ordering a US-South Vietnamese “incursion” into Cambodia on April 30. Limited by Nixon to a 30-kilometer strip along the border, and limited in time to the end of June, this action sparked violent protests on campuses across the United States. These culminated in the deaths of four students at Kent State University on May 4. The incursion into the North Vietnamese Army (NVA) base camps yielded a great quantity of rice, weapons, and ammunition, and disrupted the North Vietnamese command and logistics structures for months, buying time for Vietnamization and further U.S. troop withdrawals.
The following spring, Nixon ordered a theater-wide offensive, seeking to seize the initiative in the war. South Vietnamese forces crossed into Cambodia and Laos in early February 1971. The North Vietnamese had anticipated the incursion into Laos, known as Lam Son 719, and massed their forces in an attempt to annihilate the South Vietnamese. The South Vietnamese withdrawal disintegrated into a disorderly retreat.
Meanwhile, Nixon and Kissinger sought to reshape the international context of the war through building relationships with North Vietnam’s superpower allies in Moscow and Beijing. Nixon wanted to create a dilemma for the Soviet and Chinese—give them “bigger fish to fry,” in his phrase—in choosing between their support of North Vietnam, and a closer relationship with the United States. The 1972 summits in Beijing and Moscow reflected this strategy, though the Communist powers continued their material support of Hanoi.
The North Vietnamese opened a three-pronged offensive in South Vietnam, known in the United States as the Easter Offensive, in late March 1972, expecting that a victory on the battlefield would translate into a triumph at the negotiating table. Rather than accept the prospect of defeat, Nixon sent massive air force and naval reinforcements to bases in Indochina and Guam. On May 4 he decided to mine North Vietnam’s harbors and open a sustained air offensive, Operation Linebacker, against North Vietnam. These actions, along with intensive air attacks in the battle areas and improved South Vietnamese defenses, stymied North Vietnam’s offensive, leading the Politburo, for the first time, to engage in serious negotiations.
On October 11–12 Kissinger and Le Duc Tho reached agreement on a peace settlement, both sides working to reach that end before the U.S. presidential election on November 7. President Thieu rejected the settlement, refusing to accept a peace that left North Vietnamese forces in South Vietnam, and legitimized the Hanoi-controlled Communist shadow government, the Provisional Revolutionary Government. His rejection forced Kissinger to resume negotiations with Le Duc Tho.
Kissinger was unable to find any common ground acceptable to both Vietnamese parties in two renewed rounds of negotiations. Finally, in order to break the deadlock, on December 14 Nixon ordered massive B–52 attacks on the North Vietnamese heartland—the “Christmas Bombing.” Meanwhile he continued to exert intense pressure on Thieu, threatening to cut off U.S. economic, military, and political support of South Vietnam if Thieu refused to accept the agreement. Negotiations resumed on January 8, 1973, and the United States and the Democratic Republic of Vietnam initialed the agreement on January 23. Thieu reluctantly accepted the settlement despite his continued misgivings, and the peace agreement was signed on January 27.
The peace settlement enabled the United States to withdraw from the war and welcome the American prisoners of war back home. Neither of the Vietnamese parties abided by the settlement, however, and the war continued.
Nixon had gained Thieu’s adherence to the agreement through a series of letters and envoys, all promising U.S. military support in the event of a North Vietnamese violation of the accords. On November 14, 1972, for example, Nixon wrote Thieu that “I repeat my personal assurances to you that the United States will react very strongly and rapidly to any violation of the agreement.” Both sides understood this to mean the recommitment of B–52s to combat. In the end, these commitments were not upheld due to a combination of factors—domestic and Congressional reluctance to re-engage in the war, economic constraints, and finally the Watergate scandal, which weakened and distracted Nixon. Having rebuilt their forces and upgraded their logistics system, North Vietnamese forces triggered a major offensive in the Central Highlands in March 1975. On April 30, 1975, NVA tanks rolled through the gate of the Presidential Palace in Saigon, effectively ending the war.
Kissinger: The View From Vietnam
One of the saddest ironies of my own history is that the United States might have achieved its goals in Southeast Asia without ever going to war.
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Henry Kissinger shakes hand with Le Duc Tho, leader of North Vietnam delegation, after the signing of the Paris Peace Accords on January 23, 1973. AFP / Getty Images
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One of the more telling moments of the political season occurred on February 11, in the middle of a Democratic primary debate between Bernie Sanders and Hillary Clinton. Surprisingly, it concerned Henry Kissinger. Clinton had made no secret of her amity for Kissinger—a fact Sanders found distasteful, to say the least. “I am proud to say that Henry Kissinger is not my friend. Count me in as somebody who will not be listening to Henry Kissinger,” Sanders said.
Sanders is intimately familiar with Kissinger’s long history of controversy. Among those controversies is his instrumental role in President Richard Nixon’s illegal bombing of Cambodia. From 1969 to 1973, the United States dropped 540,000 tons of bombs on the country, killing anywhere from 150,000 to 500,000 Cambodians. The intent, according to Nixon and Kissinger, then Nixon’s national security advisor and, for a time, also his secretary of state, was to interdict communist Vietnamese troop movements through Cambodia. For Sanders, this policy and others like it made Kissinger “one of the most destructive secretaries of state.” In response to Sanders, Clinton defended her sometimes-mentor. “It’s a big complicated world,” she said, offering Kissinger’s opening to China as an example of his diplomatic stewardship.
In that moment, Clinton lost my vote. Not only for her stance on Kissinger, but for how that stance aligned with her widely shared perspective on American exceptionalism. “America is great because America is good,” she said at the Democratic National Convention, summarizing a bipartisan consensus that is strong in Washington and across the country. As a refugee from Vietnam, a country the United States bombed, mined, and laced with Agent Orange for years, I have doubts about America’s core goodness.
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9. CIVIL RIGHTS ACTIONS—42 U.S.C. § 1983
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Introductory Comment
This chapter focuses on 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
This chapter is organized to provide separate "elements" instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.3–9.4) and against local governing bodies (Instructions 9.5–9.8) because there are different legal standards establishing liability against these two types of defendants. Instructions 9.9–9.33 provide instructions to establish the deprivation of particular constitutional rights. An elements instruction should be used only in conjunction with a "particular rights" instruction appropriate to the facts of the case at hand.
[See chart in attached wordperfect document]
The chart below [See chart in attached wordperfect document] identifies the instructions for violations of particular federal rights to be used in conjunction with an elements instruction. "Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’" Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). When necessary, these instructions include right-specific mental states because § 1983 itself "contains no independent state-of-mind requirement" apart from what is necessary to state a violation of the underlying right. Daniels v. Williams, 474 U.S. 327, 328 (1986).
Person Subject to § 1983 Liability
It is well settled that a "person" subject to liability can be an individual sued in an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc)) or in an official capacity (see Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.2013)). A "person" subject to liability can also be a local governing body (see Waggy v. Spokane Cnty., Wash., 594 F.3d 707, 713 (9th Cir.2010)).
Local Governing Body Liability
A local governing body is not liable under § 1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978). But see Instruction 9.7 (addressing ratification and causation). "[A] municipality cannot be held liable under §1983 on a respondeat superior theory." Monell, 436 U.S. at 691. "The ‘official policy’ requirement ‘was intended to distinguish acts of the municipality from acts of employees of the municipality,’ and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in original). Because there are several ways to establish "Monell liability," see Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999), the Committee also includes in this chapter separate elements instructions for several bases of such liability (Instructions 9.5, 9.6, 9.7, and 9.8).
Eleventh Amendment Immunity
Despite the language of § 1983, "every person" does not have a universal scope; it does not encompass claims against a state or a state agency because the Eleventh Amendment bars such encroachments on a state’s sovereignty. Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.1997) ("States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983," quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)). Even if a plaintiff seeks only injunctive relief, a state that has not waived its Eleventh Amendment immunity cannot be sued in its own name under § 1983. Will, 491 U.S. at 64, 71, n.10. The Ninth Circuit applies a five-factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes: (1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued in its own name; (4) whether the entity has the authority to hold property in its own name; and (5) whether the entity has the corporate status of a state agency. Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 778 (9th Cir.2005) (citations omitted). The first prong of the test—whether a money judgment would be satisfied out of state funds—is the predominant factor. Id.
In contrast to a state or state agency, a state official may be sued in his or her official capacity under § 1983, but only for prospective injunctive relief. This is because "official-capacity actions for prospective relief are not treated as actions against the State." Will, 491 U.S. at 71 n.10. A state official may be sued under § 1983 in his or her individual capacity for damages. Kentucky v. Graham, 473 U.S. 159, 165 (1985); but see Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010) (holding that in order to be individually liable under § 1983, individual must personally participate in alleged rights deprivation).
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28 U.S. Code § 4101 - Definitions
Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
• US Code
• Notes
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In this chapter:
(1)Defamation.—
The term “defamation” means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.
(2)Domestic court.—
The term “domestic court” means a Federal court or a court of any State.
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Defamation is a legal right provided by California statute. See California Civil Code §§ 44, 45a and 46. Generally, it is a false statement of fact that is harmful to the person's reputation, is published, and is read or heard by someone other than the person being talked about. When the statement is made orally, it's called slander; a written statement is called libel.
In the employment context, defamation claims sometimes arise after the employment relationship ends and when a former employer is asked for a reference. Typically, the false statement is about the reasons why the employee was fired or the quality of the employee's performance. But defamation claims most often arise in the course of employment when there is an attempt to justify an unfair action taken against the employee, such as termination, demotion, failure to pay bonus award, or sometimes just company politics.
What are the elements of defamation?
The elements of a defamation claim are:
1. A publication of a statement to a person/persons other than the plaintiff;
2. The person/persons who heard the statement reasonably understood that the statement was about plaintiff; and
3. Reasonably understand the defamatory nature of the statement; and
4. The defendant failed to use reasonable care to determine the truth or falsity of the statement.
See CACI Jury Instruction 1704.
Note that the elements described above are elements that a private figure plaintiff must prove regarding defamatory statements of a private concern. This is the type of situation that most employment claims arise out of but there are special laws with respect to public figure plaintiffs (e.g., politicians, celebrities).
What damages need to be proved in a defamation claim?
In most cases, a plaintiff does not need to prove damages because the damages are inherent in the defamation. In other words, the harm caused to the plaintiff's reputation is already apparent. Inherently defamatory statements are known as defamation per se. In all other cases in which damages are not inherent in the defamation, a plaintiff will need to prove "special damages," which includes damage to reputation, emotional distress, humiliation, and anxiety.
California Civil Jury Instructions (CACI)
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by making [one or more of] the following statement(s): [list all claimed per se defamatory statements]. To establish this claim, [name of plaintiff] must prove that all of the following are more likely true than not true:
Liability
1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff];
3. [That [this person/these people] reasonably understood the statement(s) to mean that [insert ground(s) for defamation per se, e.g., “[name of plaintiff] had committed a crime”]]; and
4. That the statement(s) [was/were] false.
In addition, [name of plaintiff] must prove by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled to recover [his/her] actual damages if [he/she] proves that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following:
a. Harm to [name of plaintiff]’s property, business, trade, profession, or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm to reputation or shame, mortification or hurt feelings, the law nonetheless assumes that [he/she] has suffered this harm. Without presenting evidence of damage, [name of plaintiff] is entitled to receive compensation for this assumed harm in whatever sum you believe is reasonable. You must award at least a nominal sum, such as one dollar.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of defendant] if [he/she] proves by clear and convincing evidence that [name of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940—3949.]
New September 2003; Revised April 2008
Directions for Use
Special verdict form CACI No. VF-1700, Defamation per se (Public Offıcer/ Figure and Limited Public Figure), should be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e., if the judge has not determined that the statement is defamatory as a matter of law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and 46 (slander). Note that certain specific grounds of libel per se have been defined by case law.
Sources and Authority
• Civil Code section 44 provides:
Defamation is effected by either of the following:
(a) Libel.
(b) Slander.
• Civil Code section 45 provides: “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
• Civil Code section 45a provides: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.”
• Civil Code section 46 provides:
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
• Section 558 of the Restatement Second of Torts provides: To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
• “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
• “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 [117 Cal.Rptr.3d 747].)
• California does not follow the majority rule, which is that all libel is actionable per se. If the court determines that the statement is reasonably susceptible to a defamatory interpretation, it is for the jury to determine if a defamatory meaning was in fact conveyed to a listener or reader. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 [284 Cal.Rptr. 244].)
• A plaintiff is not required to allege special damages if the statement is libelous per se (either on its face or by jury finding). (Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr. 838].)
• “A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and requires no proof of actual damages. A slander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander.” (The Nethercutt Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882], internal citations omitted.)
• “With respect to slander per se, the trial court decides if the alleged statement falls within Civil Code section 46, subdivisions 1 through 4. It is then for the trier of fact to determine if the statement is defamatory. This allocation of responsibility may appear, at first glance, to result in an overlap of responsibilities because a trial court determination that the statement falls within those categories would seemingly suggest that the statement, if false, is necessarily defamatory. But a finder of fact might rely upon extraneous evidence to conclude that, under the circumstances, the statement was not defamatory.” (The Nethercutt Collection, supra, 172 Cal.App.4th at pp. 368-369.)
• “ ‘ “The sine qua non of recovery for defamation . . . is the existence of falsehood.” . . . Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected…’ That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The critical question is not whether a statement is fact or opinion, but ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” ’ ” (Wong, supra, 189 Cal.App.4th at p. 1370, internal citations omitted.)
• “ ‘To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact… Under the totality of the circumstances test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense… [¶ ] Next, the context in which the statement was made must be considered.” . . .’ ” (Wong, supra, 189 Cal.App.4th at p. 1370.)
• “Whether a challenged statement ‘declares or implies a provable false assertion of fact is a question of law for the court to decide . . . , unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.’ ” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
• “[T]he jury was instructed that if it found that defendant published matter that was defamatory on its face and it found by clear and convincing evidence that defendant knew the statement was false or published it in reckless disregard of whether it was false, then the jury ‘also may award plaintiff presumed general damages.’ Presumed damages ‘are those damages that necessarily result from the publication of defamatory matter and are presumed to exist. They include reasonable compensation for loss of reputation, shame, mortification, and hurt feeling. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for presumed damages, and no evidence of actual harm is required. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for presumed damages, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. You may in the exercise of your discretion award nominal damages only, namely an insignificant sum such as one dollar.’ [¶] . . . [¶] . . . [T]he instant instruction, which limits damages to ‘those damages that necessarily result from the publication of defamatory matter,’ constitutes substantial compliance with [Civil Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not allow the jurors to “enter the realm of speculation” regarding future suffering.’ ” (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472—1473 [48 Cal.Rptr.2d 235], internal citations omitted.)
• “In defamation actions generally, factual truth is a defense which it is the defendant’s burden to prove. In a defamation action against a newspaper by a private person suing over statements of public concern, however, the First Amendment places the burden of proving falsity on the plaintiff. As a matter of constitutional law, therefore, media statements on matters of public interest, including statements of opinion which reasonably imply a knowledge of facts, ‘must be provable as false before there can be liability under state defamation law.’ ” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382 [88 Cal.Rptr.2d 802], internal citations omitted.)
• In matters involving public concern, the First Amendment protection applies to nonmedia defendants, putting the burden of proving falsity of the statement on the plaintiff. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781].)
• “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith, supra, 72 Cal.App.4th at p. 645, internal citations omitted.)
• “[W]hen a party repeats a slanderous charge, he is equally guilty of defamation, even though he states the source of the charge and indicates that he is merely repeating a rumor.” (Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 26 [80 Cal.Rptr.2d 1], internal citation omitted.)
• “At common law, one who republishes a defamatory statement is deemed thereby to have adopted it and so may be held liable, together with the person who originated the statement, for resulting injury to the reputation of the defamation victim. California has adopted the common law in this regard, although by statute the republication of defamatory statements is privileged in certain defined situations.” (Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 268 [79 Cal.Rptr.2d 178, 965 P.2d 696], internal citations omitted.)
• The general rule is that “a plaintiff cannot manufacture a defamation cause of action by publishing the statements to third persons; the publication must be done by the defendant.” There is an exception to this rule. [When it is foreseeable that the plaintiff] “ ‘will be under a strong compulsion to disclose the contents of the defamatory statement to a third person after he has read it or been informed of its contents.’ ” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284 [286 Cal.Rptr. 198], internal citations omitted.)
• Whether a plaintiff in a defamation action is a public figure is a question of law for the trial court. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252 [208 Cal.Rptr. 137, 690 P.2d 610].) “The question whether a plaintiff is a public figure is to be determined by the court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 203 [35 Cal.Rptr.2d 740], internal citation omitted.)
• “To qualify as a limited purpose public figure, a plaintiff ‘must have undertaken some voluntary [affirmative] act[ion] through which he seeks to influence the resolution of the public issues involved.’ ” (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1190 [31 Cal.Rptr.2d 193]; see also Mosesian v. McClatchy Newspapers (1991) 233 Cal.App.3d 1685, 1689 [285 Cal.Rptr. 430].)
• “The First Amendment limits California’s libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’ Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author ‘in fact entertained serious doubts as to the truth of his publication,’ or acted with a ‘high degree of awareness of . . . probable falsity.’ ” (Masson v. New Yorker Magazine (1991) 501 U.S. 496, 510 [111 S.Ct. 2419, 115 L.Ed.2d 447], internal citations omitted; see St. Amant v. Thompson (1968) 390 U.S. 727, 731 [88 S.Ct. 1323, 20 L.Ed.2d 262]; New York Times v. Sullivan (1964) 376 U.S. 254, 279—280 [84 S.Ct. 710, 11 L.Ed.2d 686].)
• The New York Times v. Sullivan standard applies to private individuals with respect to presumed or punitive damages if the statement involves a matter of public concern. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
• “California . . . permits defamation liability so long as it is consistent with the requirements of the United States Constitution.” (Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1359 [78 Cal.Rptr.2d 627], citing Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 740—742 [257 Cal.Rptr. 708, 771 P.2d 406].)
• “Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will… In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.” (Masson, supra, 501 U.S. at pp. 510—511, internal citations omitted.)
• Actual malice “does not require that the reporter hold a devout belief in the truth of the story being reported, only that he or she refrain from either reporting a story he or she knows to be false or acting in reckless disregard of the truth.” (Jackson, supra, 68 Cal.App.4th at p. 35.)
• “The law is clear [that] the recklessness or doubt which gives rise to actual or constitutional malice is subjective recklessness or doubt.” (Melaleuca, Inc., supra, 66 Cal.App.4th at p. 1365.)
• To show reckless disregard, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” (St. Amant, supra, 390 U.S. at p. 731.)
• “Although the issue turns on the subjective good faith of the defendant, the plaintiff may attempt to prove reckless disregard for truth by circumstantial evidence. ‘A failure to investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff—such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication.’ ” (Copp v. Paxton, (1996) 45 Cal.App.4th 829, 847 [52 Cal.Rptr.2d 831], internal citations omitted, quoting Reader’s Digest Assn., supra, 37 Cal.3d at p. 258, footnote omitted.)
• “An entity other than a natural person may be libeled.” (Live Oak Publishing Co., supra, 234 Cal.App.3d at p. 1283.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529—555, 601—612
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, §§ 340.10—340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, §§ 142.24—142.27 (Defamation) (Matthew Bender)
1 California Civil Practice: Torts §§ 21:1—21:2, 21:22—21:25, 21:44—21:52 (Thomson Reuters West)
Today on Verdict
______________________
(42)
California Code, Vehicle Code - VEH § 14103
Failure to respond to a notice given under this chapter within 10 days is a waiver of the right to a hearing, and the department may take action without a hearing or may, upon request of the person whose privilege of driving is in question, or at its own option, reopen the question, take evidence, change, or set aside any order previously made, or grant a hearing.
________________
{43}
The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, is a United States law granting certain rights to artists.
VARA was the first federal copyright legislation to grant protection to moral rights. Under VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting, and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.
Although federal law had not acknowledged moral rights before this act, some state legislatures and judicial decisions created limited moral-rights protection. The Berne Convention required the protection of these rights by signatory states, and it was in response that the U.S. Congress passed the VARA.
Contents
• 1 Exclusive rights under VARA
o 1.1 Covered works
• 2 Application and effect
• 3 Examples of works
• 4 See also
• 5 External links
• 6 References
Exclusive rights under VARA
VARA exclusively grants authors of works that fall under the protection of the Act the following rights
• right to claim authorship
• right to prevent the use of one's name on any work the author did not create
• right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
• right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work. Exceptions to VARA require a waiver from the author in writing. To date, "recognized stature" has managed to elude a precise definition. VARA allows authors to waive their rights, something generally not permitted in France and many European countries whose laws were the originators of the moral rights of artists concept.[1]
In most instances, the rights granted under VARA persist for the life of the author (or the last surviving author, for creators of joint works).
Covered works
VARA provides its protection only to paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. The requirements for protection do not implicate aesthetic taste or value.
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Results 1 - 12 of 18 - Online shopping from a great selection at Books Store. ... The Gift. Dec 31, 2013. by Bright Quang. Kindle Edition · 3. Auto-delivered ...
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Despite being detained in several South Vietnam concentration camps by the communist regime from 1975 to 1981, Bright Quang maintained his love for art and ...
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{44}
California Code, Vehicle Code - VEH § 14105
(a)Upon the conclusion of a hearing, the hearing officer or hearing board shall make findings and render a decision on behalf of the department and Notice of the decision shall include a shall notify the person involved. The decision shall take statement of the person's right to a review. effect as stated in the notice, but not less than four nor more than 15 days after the notice is mailed.
The decision may be modified at any time after issuance to correct mistakes or clerical errors. (b)
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{45} Vehicle code- VEH § 13953
In the alternative to the procedure under Sections 13950, 13951, and 13952 and in the event the department determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons upon the highways require such action, the department shall forthwith and without hearing suspend or revoke the privilege of the person to operate a motor vehicle or impose reasonable terms and conditions of probation which shall be relative to the safe No order of suspension or revocation or operation of a motor vehicle. the imposition of terms or conditions of probation shall become effective until 30 days after the giving of written notice thereof to the person affected, except that the department shall have authority to make any such order effective immediately upon the giving of notice when in its opinion because of the mental or physical condition of the person such immediate action is required for the safety of the driver or other persons upon the highway
Physical and Mental Evaluation Guidelines
Purpose
This document provides guidelines for evaluating and taking action against the driving privilege of drivers with physical or mental conditions or disabilities that may impair the ability to drive.
[pic]
Authority
Vehicle Code Sections 12806 and 12809 authorize the department to refuse to issue or renew a driver license to an individual who is incapable of safely operating a motor vehicle for reasons relating to physical or mental conditions. Vehicle Code Section 12814 permits the department to administer certain tests and perform a reexamination upon renewal of a license.
Vehicle Code Section 13800 allows the department to make an investigation and perform a reexamination of a driver. Vehicle Code Section 12818 authorizes priority reexamination of a driver for reasons relating to a physical or mental condition which impairs the driving ability, and Section 13953 permits immediate suspension or revocation of the license. Vehicle Code Section 13359 authorizes the department to suspend or revoke a driver licenses on any grounds pertaining to refusal of license.
Health and Safety Code Section 103900 mandates the department to develop guidelines designed to enhance the monitoring of patients affected with disorders specified in this section. Guidelines covering lapses of consciousness, Alzheimer's disease and related disorders, are included in this document.
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{46}
39 U.S. Code § 201 - United States Postal Service
There is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service.
(Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 720.)
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{47}
California Civil Jury Instructions: See CACI Nos. 3940–3949
California Civil Jury Instructions (CACI)
3940. Punitive Damages - Individual Defendant—Trial Not Bifurcated
If you decide that [name of defendant]'s conduct caused [name of plaintiff] harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.
You may award punitive damages only if [name of plaintiff] proves by clear and convincing evidence that [name of defendant] engaged in that conduct with malice, oppression, or fraud.
"Malice" means that [name of defendant] acted with intent to cause injury or that [name of defendant]'s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.
"Oppression" means that [name of defendant]'s conduct was despicable and subjected [name of plaintiff] to cruel and unjust hardship in knowing disregard of [his/her] rights.
"Despicable conduct" is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.
"Fraud" means that [name of defendant] intentionally misrepresented or concealed a material fact and did so intending to harm [name of plaintiff].
There is no fixed standard for determining the amount of punitive damages, and you are not required to award any punitive damages. If you decide to award punitive damages, you should consider all of the following in determining the amount:
(a) How reprehensible was [name of defendant]'s conduct?
(b) Is there a reasonable relationship between the amount of punitive damages and [name of plaintiff]'s harm?
(c) In view of [name of defendant]'s financial condition, what amount is necessary to punish [him/her] and discourage uture wrongful conduct? You may not increase the punitive award above an amount that is otherwise appropriate merely because [name of defendant] has substantial financial resources. [Any award you impose may not exceed [name of defendant]'s ability to pay.]
Directions for Use
This instruction is intended to apply to individual persons only. When the plaintiff is seeking punitive damages against corporate defendants, use CACI No. 3943, Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or Employee—Trial Not Bifurcated, or CACI No. 3945, Punitive Damages—Entity Defendant—Trial Not Bifurcated. When plaintiff is seeking punitive damages against both an individual person and a corporate defendant, use CACI No. 3947, Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated.
For an instruction explaining "clear and convincing evidence," see CACI No. 201, More Likely True—Clear and Convincing Proof.
Read the bracketed language in subdivision (c) only if the defendant has presented relevant evidence regarding this issue.
"A jury must be instructed . . . that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred." (State Farm Mutual Automobile Insurance Co. v. Campbell (2003) 538 U.S. 408, 422 [123 S.Ct. 1513, 155 L.Ed.2d 585].) An instruction on this point should be included within this instruction if appropriate to the facts.
In an appropriate case, the jury may be instructed that a false promise or a suggestion of a fact known to be false may constitute a misrepresentation as the word "misrepresentation" is used in the instruction's definition of "fraud."
In June 2003, the United States Supreme Court restated the due process principles limiting awards of punitive damages in State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 418. Several subsequent California Court of Appeal cases have responded to various aspects of the United States Supreme Court's reasoning. (See, e.g., Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738 [6 Cal.Rptr.3d 793] [in light of Campbell, it is error to give BAJI 14.71].)
The California Supreme Court recently granted review in three appellate decisions that involve post-Campbell punitive damages awards. (Henley v. Philip Morris, Inc. (2004) 114 Cal.App.4th 1429 [9 Cal.Rptr.3d 29], review granted Apr. 28, 2004, S123023; Simon v. San Paolo U.S. Holding Co. (2003) 113 Cal.App.4th 1137 [7 Cal.Rptr.3d 367], review granted Mar. 24, 2004, S121933; Johnson v. Ford Motor Co., review granted Mar. 24, 2004, S121723.) At this time, because of the recent and rapidly developing state of California law, the Advisory Committee has elected not to make substantive modifications to the CACI instructions on punitive damages in response to these holdings. Because state and federal law in this area is evolving, the court should assess whether changes to the instruction are appropriate based on any recent decisions.
Courts have stated that "[p]unitive damages previously imposed for the same conduct are relevant in determining the amount of punitive damages required to sufficiently punish and deter. The likelihood of future punitive damage awards may also be considered, although it is entitled to considerably less weight." (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d 525], internal citations omitted.) The court in Stevens suggested that the following instruction be given if evidence of other punitive damage awards is introduced into evidence:
If you determine that a defendant has already been assessed with punitive damages based on the same conduct for which punitive damages are requested in this case, you may consider whether punitive damages awarded in other cases have sufficiently punished and made an example of the defendant. You must not use the amount of punitive damages awarded in other cases to determine the amount of the punitive damage award in this case, except to the extent you determine that a lesser award, or no award at all, is justified in light of the penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Regarding the relationship between punitive and compensatory damages, case law suggests that a jury may consider harm that could have been caused by the defendant's conduct, even if that harm did not come to pass: "The high court in TXO [TXO Production Corp. v. Alliance Resources Corp. (1993) 509 U.S. 443 [113 S.Ct. 2711, 125 L.Ed.2d 366]] and BMW [BMW of North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d 809]] has refined the disparity analysis to take into ccount the potential loss to the plaintiffs, as where a scheme worthy of punitive damages does not fully succeed. In such cases, the proper ratio would be the ratio of punitive damages to the potential harm to plaintiff." (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], internal citations omitted.)
Sources and Authority
Civil Code section 3294 provides, in part:
(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.
(c) As used in this section, the following definitions shall apply:
(1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
(3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the efendant of thereby depriving a person of property or legal rights or otherwise causing injury.
"An award of punitive damages is not supported by a verdict based on breach of contract, even where the defendant's conduct in breaching the contract was wilful, fraudulent, or malicious. Even in those cases in which a separate tort action is alleged, if there is 'but one verdict based upon contract' a punitive damage award is improper." (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal citations omitted.)
"The purpose of punitive damages is to punish wrongdoers and thereby deter the commission of wrongful acts." (Neal v. Farmers Insurance Exchange (1978) 21 Cal.3d 910, 928, fn. 13 [148 Cal.Rptr. 389, 582 P.2d 980].)
"Punitive damages are to be assessed in an amount which, depending upon the defendant's financial worth and other factors, will deter him and others from committing similar misdeeds. Because compensatory damages are designed to make the plaintiff 'whole,' punitive damages are a 'windfall' form of recovery." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712 [34 Cal.Rptr2d 898, 882 P.2d 894], internal citations omitted.)
"It follows that the wealthier the wrongdoing defendant, the larger the award of exemplary damages need be in order to accomplish the statutory objective." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65 [118 Cal.Rptr. 184, 529 P.2d 608].)
" 'A plaintiff, upon establishing his case, is always entitled of right to compensatory damages. But even after establishing a case where punitive damages are permissible, he is never entitled to them. The granting or withholding of the award of punitive damages is wholly within the control of the jury, and may not legally be influenced by any direction of the court that in any case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is still the exclusive province of the jury to say whether or not punitive damages shall be awarded. A plaintiff is entitled to such damages only after the jury, in the exercise of its untrammeled discretion, has made the award.' " (Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 801 [197 P.2d 713], internal citation omitted.)
"In light of our holding that evidence of a defendant's financial condition is essential to support an award of punitive damages, Evidence Code section 500 mandates that the plaintiff bear the burden f proof on the issue. A plaintiff seeking punitive damages is not seeking a mere declaration by the jury that he is entitled to punitive damages in the abstract. The plaintiff is seeking an award of real money in a specific amount to be set by the jury. Because the award, whatever its amount, cannot be sustained absent evidence of the defendant's financial condition, such evidence is 'essential to the claim for relief.' " (Adams v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348], internal citation omitted.)
"[W]e are afforded guidance by certain established principles, all of which are grounded in the purpose and function of punitive damages. One factor is the particular nature of the defendant's acts in light of the whole record; clearly, different acts may be of varying degrees of reprehensibility, and the more reprehensible the act, the greater the appropriate punishment, assuming all other factors are equal. Another relevant yardstick is the amount of compensatory damages awarded; in general, even an act of considerable reprehensibility will not be seen to justify a proportionally high amount of punitive damages if the actual harm suffered thereby is small. Also to be considered is the wealth of the particular defendant; obviously, the function of deterrence will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort. By the same token, of course, the function of punitive damages is not served by an award which, in light of the defendant's wealth and the gravity of the particular act, exceeds the level necessary to properly punish and deter." (Neal, supra, 21 Cal.3d at p. 928, internal citations and footnote omitted.)
"We have instructed courts to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect." (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 419, internal citation omitted.)
"The decision to award punitive damages is exclusively the function of the trier of fact. So too is the amount of any punitive damage award. The relevant considerations are the nature of the defendant's conduct, the defendant's wealth, and the plaintiff's actual damages." (Gagnon v.
Continental Casualty Co. (1989) 211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
"The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award." (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 427, internal citation omitted.)
"[T]he purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not to destroy." (Adams, supra, 54 Cal.3d at p. 112.)
"[A] punitive damages award is excessive if it is disproportionate to the defendant's ability to pay." (Adams, supra, 54 Cal.3d at p. 112, internal citations omitted.)
"It has been recognized that punitive damages awards generally are not permitted to exceed 10 percent of the defendant's net worth." (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
"In light of our discussion, we conclude that even where, as here, punitive but not compensatory damages are available to the plaintiff, the defendant is entitled to an instruction that punitive damages must bear a reasonable relation to the injury, harm, or damage actually suffered by the plaintiff and proved at trial. Consequently, the trial court erred in failing to so instruct the jury." (Gagnon, supra, 211 Cal.App.3d at p. 1605.)
"Malice, for purposes of awarding exemplary damages, includes 'despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' To establish conscious disregard, the plaintiff must show 'that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.' " (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 61 [29 Cal.Rptr.2d 615], internal citations omitted.)
"Used in its ordinary sense, the adjective 'despicable' is a powerful term that refers to circumstances that are 'base,' 'vile,' or 'contemptible.' As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, 'malice' requires more than a 'willful and conscious' disregard of the plaintiffs' interests. The additional component of 'despicable conduct' must be found." (College Hospital, Inc., supra, 8 Cal.4th at p. 725, internal citations omitted.)
"We conclude that the rule . . . that an award of exemplary damages must be accompanied by an award of compensatory damages [or its equivalent] is still sound. That rule cannot be deemed satisfied where the jury has made an express determination not to award compensatory damages." (Cheung v. Daley (1995) 35 Cal.App.4th 1673, 1677 [42 Cal.Rptr.2d 164], footnote omitted.)
"With the focus on the plaintiff's injury rather than the amount of compensatory damages, the ["reasonable relation"] rule can be applied even in cases where only equitable relief is obtained or where nominal damages are awarded or, as here, where compensatory damages are unavailable." (Gagnon, supra, 211 Cal.App.3d at p. 1605.)
Secondary Sources
6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1327, 1335-1341, 1369-1381
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.01-54.06, 54.20-54.25 (Matthew Bender)
California Tort Damages (Cont.Ed.Bar 1988) Punitive Damages, §§ 14.1- 14.8, 14.15-14.18
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)
(Revised December 2005)
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17 U.S. Code § 106A - Rights of certain authors to attribution and integrity
(a)Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A)
to claim authorship of that work, and
(B)
to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2)
shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A)
to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B)
to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b)Scope and Exercise of Rights.—
Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
(c)Exceptions.—
(1)
The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2)
The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3)
The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d)Duration of Rights.—
(1)
With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(2)
With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
(3)
In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
(4)
All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.
(e)Transfer and Waiver.—
(1)
The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
(2)
Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
(Added Pub. L. 101–650, title VI, § 603(a), Dec. 1, 1990, 104 Stat. 5128.)
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1346. United States as defendant 28 U.S.C. § 1346 - U.S. Code - Unannotated Title 28. Judiciary and Judicial Procedure §
The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).
The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.
The district courts shall not have jurisdiction under this section of any civil action or claim for a pension.
The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986.
The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.
Subject to the provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under chapter 5 of such title.
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28 U.S. Code § 1827 - Interpreters in courts of the United States
(a)
The Director of the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.
(b)
(1)
The Director shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters, when the Director considers certification of interpreters to be merited, for the hearing impaired (whether or not also speech impaired) and persons who speak only or primarily a language other than the English language, in judicial proceedings instituted by the United States. The Director may certify interpreters for any language if the Director determines that there is a need for certified interpreters in that language. Upon the request of the Judicial Conference of the United States for certified interpreters in a language, the Director shall certify interpreters in that language. Upon such a request from the judicial council of a circuit and the approval of the Judicial Conference, the Director shall certify interpreters for that circuit in the language requested. The judicial council of a circuit shall identify and evaluate the needs of the districts within a circuit. The Director shall certify interpreters based on the results of criterion-referenced performance examinations. The Director shall issue regulations to carry out this paragraph within 1 year after the date of the enactment of the Judicial Improvements and Access to Justice Act.
(2)
Only in a case in which no certified interpreter is reasonably available as provided in subsection (d) of this section, including a case in which certification of interpreters is not provided under paragraph (1) in a particular language, may the services of otherwise qualified interpreters be used. The Director shall provide guidelines to the courts for the selection of otherwise qualified interpreters, in order to ensure that the highest standards of accuracy are maintained in all judicial proceedings subject to the provisions of this chapter.
(3)
The Director shall maintain a current master list of all certified interpreters and otherwise qualified interpreters and shall report periodically on the use and performance of both certified and otherwise qualified interpreters in judicial proceedings instituted by the United States and on the languages for which interpreters have been certified. The Director shall prescribe, subject to periodic review, a schedule of reasonable fees for services rendered by interpreters, certified or otherwise, used in proceedings instituted by the United States, and in doing so shall consider the prevailing rate of compensation for comparable service in other governmental entities.
(c)
(1)
Each United States district court shall maintain on file in the office of the clerk, and each United States attorney shall maintain on file, a list of all persons who have been certified as interpreters by the Director in accordance with subsection (b) of this section. The clerk shall make the list of certified interpreters for judicial proceeding available upon request.
(2)
The clerk of the court, or other court employee designated by the chief judge, shall be responsible for securing the services of certified interpreters and otherwise qualified interpreters required for proceedings initiated by the United States, except that the United States attorney is responsible for securing the services of such interpreters for governmental witnesses.
(d)
(1) The presiding judicial officer, with the assistance of the Director of the Administrative Office of the United States Courts, shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise qualified interpreter, in judicial proceedings instituted by the United States, if the presiding judicial officer determines on such officer’s own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimony in such judicial proceedings—
(A)
speaks only or primarily a language other than the English language; or
(B)
suffers from a hearing impairment (whether or not suffering also from a speech impairment)
so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presentation of such testimony.
(2)
Upon the motion of a party, the presiding judicial officer shall determine whether to require the electronic sound recording of a judicial proceeding in which an interpreter is used under this section. In making this determination, the presiding judicial officer shall consider, among other things, the qualifications of the interpreter and prior experience in interpretation of court proceedings; whether the language to be interpreted is not one of the languages for which the Director has certified interpreters, and the complexity or length of the proceeding. In a grand jury proceeding, upon the motion of the accused, the presiding judicial officer shall require the electronic sound recording of the portion of the proceeding in which an interpreter is used.
(e)
(1)
If any interpreter is unable to communicate effectively with the presiding judicial officer, the United States attorney, a party (including a defendant in a criminal case), or a witness, the presiding judicial officer shall dismiss such interpreter and obtain the services of another interpreter in accordance with this section.
(2)
In any judicial proceedings instituted by the United States, if the presiding judicial officer does not appoint an interpreter under subsection (d) of this section, an individual requiring the services of an interpreter may seek assistance of the clerk of court or the Director of the Administrative Office of the United States Courts in obtaining the assistance of a certified interpreter.
(f)
(1)
Any individual other than a witness who is entitled to interpretation under subsection (d) of this section may waive such interpretation in whole or in part. Such a waiver shall be effective only if approved by the presiding judicial officer and made expressly by such individual on the record after opportunity to consult with counsel and after the presiding judicial officer has explained to such individual, utilizing the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise competent interpreter, the nature and effect of the waiver.
(2)
An individual who waives under paragraph (1) of this subsection the right to an interpreter may utilize the services of a noncertified interpreter of such individual’s choice whose fees, expenses, and costs shall be paid in the manner provided for the payment of such fees, expenses, and costs of an interpreter appointed under subsection (d) of this section.
(g)
(1)
There are authorized to be appropriated to the Federal judiciary, and to be paid by the Director of the Administrative Office of the United States Courts, such sums as may be necessary to establish a program to facilitate the use of certified and otherwise qualified interpreters, and otherwise fulfill the provisions of this section and the Judicial Improvements and Access to Justice Act, except as provided in paragraph (3).
(2)
Implementation of the provisions of this section is contingent upon the availability of appropriated funds to carry out the purposes of this section.
(3)
Such salaries, fees, expenses, and costs that are incurred with respect to Government witnesses (including for grand jury proceedings) shall, unless direction is made under paragraph (4), be paid by the Attorney General from sums appropriated to the Department of Justice.
(4)
Upon the request of any person in any action for which interpreting services established pursuant to subsection (d) are not otherwise provided, the clerk of the court, or other court employee designated by the chief judge, upon the request of the presiding judicial officer, shall, where possible, make such services available to that person on a cost-reimbursable basis, but the judicial officer may also require the prepayment of the estimated expenses of providing such services.
(5)
If the Director of the Administrative Office of the United States Courts finds it necessary to develop and administer criterion-referenced performance examinations for purposes of certification, or other examinations for the selection of otherwise qualified interpreters, the Director may prescribe for each examination a uniform fee for applicants to take such examination. In determining the rate of the fee for each examination, the Director shall consider the fees charged by other organizations for examinations that are similar in scope or nature. Notwithstanding section 3302(b) of title 31, the Director is authorized to provide in any contract or agreement for the development or administration of examinations and the collection of fees that the contractor may retain all or a portion of the fees in payment for the services. Notwithstanding paragraph (6) of this subsection, all fees collected after the effective date of this paragraph and not retained by a contractor shall be deposited in the fund established under section 1931 of this title and shall remain available until expended.
(6)
Any moneys collected under this subsection may be used to reimburse the appropriations obligated and disbursed in payment for such services.
(h)
The presiding judicial officer shall approve the compensation and expenses payable to interpreters, pursuant to the schedule of fees prescribed by the Director under subsection (b)(3).
(i)
The term “presiding judicial officer” as used in this section refers to any judge of a United States district court, including a bankruptcy judge, a United States magistrate judge, and in the case of grand jury proceedings conducted under the auspices of the United States attorney, a United States attorney.
(j)
The term “judicial proceedings instituted by the United States” as used in this section refers to all proceedings, whether criminal or civil, including pretrial and grand jury proceedings (as well as proceedings upon a petition for a writ of habeas corpus initiated in the name of the United States by a relator) conducted in, or pursuant to the lawful authority and jurisdiction of a United States district court. The term “United States district court” as used in this subsection includes any court which is created by an Act of Congress in a territory and is invested with any jurisdiction of a district court established by chapter 5 of this title.
(k)
The interpretation provided by certified or otherwise qualified interpreters pursuant to this section shall be in the simultaneous mode for any party to a judicial proceeding instituted by the United States and in the consecutive mode for witnesses, except that the presiding judicial officer, sua sponte or on the motion of a party, may authorize a simultaneous, or consecutive interpretation when such officer determines after a hearing on the record that such interpretation will aid in the efficient administration of justice. The presiding judicial officer, on such officer’s motion or on the motion of a party, may order that special interpretation services as authorized in section 1828 of this title be provided if such officer determines that the provision of such services will aid in the efficient administration of justice.
(l)
Notwithstanding any other provision of this section or section 1828, the presiding judicial officer may appoint a certified or otherwise qualified sign language interpreter to provide services to a party, witness, or other participant in a judicial proceeding, whether or not the proceeding is instituted by the United States, if the presiding judicial officer determines, on such officer’s own motion or on the motion of a party or other participant in the proceeding, that such individual suffers from a hearing impairment. The presiding judicial officer shall, subject to the availability of appropriated funds, approve the compensation and expenses payable to sign language interpreters appointed under this section in accordance with the schedule of fees prescribed by the Director under subsection (b)(3) of this section.
(Added Pub. L. 95–539, § 2(a), Oct. 28, 1978, 92 Stat. 2040; amended Pub. L. 100–702, title VII, §§ 702–710, Nov. 19, 1988, 102 Stat. 4654–4657; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 104–317, title III, § 306, title IV, § 402(a), Oct. 19, 1996, 110 Stat. 3852, 3854.)
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