       Constitutionality of Replacing Federal Tort Claims Act
          Liability with an Administrative Claims System

C o n g re ss m ay w ith d ra w its w a iv e r o f so v e re ig n im m u n ity in the F e d eral T o rt C laim s A ct
   fo r p resen tly p en d in g claim s o f rad iatio n fallout victim s, w h e th e r o r not any adm inis­
   tra tiv e claim s system is c re a te d as a substitute.

If it d o es not w ith d ra w its w a iv e r o f so v e re ig n im m unity, C o n g ress m ay su b stitu te an
  a d m in istrativ e claim s system for a ju d ic ia l cau se o f actio n w ith o u t o ffending due
   p ro cess, as lo n g as th e n ew rem ed y is fair an d a d e q u a te w h en c o m p a re d to the o ld one.

                                                                                            March 25, 1980
   MEM ORANDUM OPINION FOR T H E DEPUTY ASSISTANT
         ATTORNEY G EN ER A L, CIV IL DIVISION

   This responds to your request for our opinion on the constitutionality
of a possible statute substituting an administrative claims system for
Federal Tort Claims Act (FTCA) causes of action for illness allegedly
due to the effects of fallout from the Atmospheric Nuclear Weapons
Testing Program at the Nevada Test Site. Although the exact contours
of such legislation are now a matter of speculation, you have asked us
to make some basic assumptions about the likely nature of the program.
We will assume that the statute would have retroactive effect in the
sense that it would abrogate presently existing causes of action under
the Federal Tort Claims Act, 28 U.S.C. § 2680. We will also assume
that the statute would define eligibility for compensation sufficiently
broadly to include persons with a range of prospects of recovery in
civil litigation, that it would set a level of benefits that in a particular
case might be substantially less than tort recovery for a prevailing
plaintiff, and that ordinary procedures for administrative adjudication
would be used. We conclude that it is possible for Congress to draft a
statute having these attributes that will be constitutional.1
        I. Congressional Withdrawal of Waivers of Sovereign Immunity

   In the Federal Tort Claims Act of 1946, Congress waived the sover­
eign immunity of the United States for the torts of government employ­
ees, “under circumstances where the United States, if a private person,

  1 We do not consider here the validity of legislation abrogating any pending claims against
government officers. Different considerations apply in that context, for example the constitutionality of
removing the opportunity for a jury trial.

                                                       516
would be liable to a claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b); See also
§§ 2674, 2680. Before that time, those with tort claims against the
government were left to seek a remedy through a private bill in Con­
gress (as were all claimants against the Government prior to the statute
creating the Court of Claims, Act of Feb. 24, 1855, 10 Stat. 612). To
what extent may Congress, having thus waived the sovereign immunity
of the United States, reassert that immunity retroactively to defeat
pending claims?
   In Lynch v. United States, 292 U.S. 571 (1934), the Supreme Court
provided a general exposition of congressional power to withdraw
waivers of sovereign immunity. Beneficiaries of insurance policies
issued under the War Risk Insurance Act sued for amounts due, alleg­
ing that repeal of the statutes governing their insurance deprived them
of property without due process, in violation of the Fifth Amendment.
It was clear to the Court that the insurance policies created vested
property rights that could not be taken without just compensation. 292
U.S. at 579. Nevertheless, this did not mean that Congress was required
to afford a judicial remedy:
         Contracts between individuals or corporations are im­
      paired within the meaning of the Constitution whenever
      the right to enforce them by legal process is taken away
      or materially lessened. A different rule prevails in respect
      to contracts of sovereigns. Compare Principality o f Monaco
      v. Mississippi, [292 U.S. 313 (1934)]. “The contracts be­
      tween a Nation and an individual are only binding on the
      conscience of the sovereign and have no pretensions to
      compulsive force. They confer no right of action inde­
      pendent of the sovereign , will” [quoting The Federalist
      No. 81 (Hamilton)]. The rule that the United States may
      not be sued without its consent is all embracing.
               *       *       *        *       *

         Although consent to sue was thus given when the
      policy issued, Congress retained power to withdraw the
      consent at any time. For consent to sue the United States
      is a privilege accorded; not the grant of a property right
      protected by the Fifth Amendment. The consent may be
      withdrawn, although given after much deliberation and
      for a pecuniary consideration. DeGroot v. United States, 5
      Wall. 419, 432. . . . The sovereign’s immunity from suit
      exists whatever the character of the proceeding or the
      source of the right sought to be enforced. It applies alike
      to causes of action arising under acts of Congress,
      DeGroot v. United States, 5 Wall. 419, 431; United States v.
      Babcock, 250 U.S. 328, 331; and to those arising from
       some violation of rights conferred upon the citizen by the
       Constitution. Schillinger v. United States, 155 U.S. 163,
        166, 168. The character of the cause of action—the fact
       that it is in contract as distinguished from tort—may be
       important in determining (as under the Tucker Act)
       whether consent to sue was given. Otherwise, it is of no
       significance. For immunity from suit is an attribute of
       sovereignty which may not be bartered away.
          Mere withdrawal of consent to sue on policies for
       yearly renewable term insurance would not imply repudi­
       ation. When the United States creates rights in individuals
       against itself, it is under no obligation to provide a
       remedy through the courts. United States v. Babcock, 250
       U.S. 328, 331. It may limit the individual to administrative
       remedies. Tutun v. United States, 270 U.S. 568, 576. And
       withdrawal of all remedy, administrative as well as legal,
       would not necessarily imply repudiation. So long as the
       contractual obligation is recognized, Congress may direct
       its fulfilment without the interposition of either a court or
       an administrative tribunal.
Id. at 580-82 (footnotes omitted). The Court went on to determine that
Congress’ repeal of the insurance statutes did not “intend to preserve
the right and merely withdraw consent to sue the United States.” Id. at
583 (footnote omitted). Accordingly, the Court held that the repeal of
the insurance statutes was unconstitutional.
   It is clear that in Lynch the Court thought that, had Congress merely
abrogated the claimants’ remedy by withdrawing consent to sue, the
effect would have been to remit them to private bills for redress of the
taking of their property. To the same effect is Perry v. United States,
294 U.S. 330, 331 (1935), in which the Court held that the Government
could not rescind obligations for payment of its bonds in gold, because
the power of Congress “to borrow Money on the credit of the United
States” (Article 1, § 8) creates the power to enter binding obligations.
The Court remarked, however:
      The fact that the United States may not be sued without
      its consent is a matter of procedure which does not affect
      the legal and binding character of its contracts. While the
      Congress is under no duty to provide remedies through
      the courts, the contractual obligation still exists and, de­
      spite infirmities of procedure, remains binding upon the
      conscience of the sovereign. Lynch v. United States, supra,
      pp. 580, 582.
294 U.S. at 354.
                                   518
 A more recent reaffirmation of Lynch is found in Maricopa County v.
 Valley National Bank, 318 U.S. 357, 362 (1943). The Court held that
Congress, having granted states the right to tax a federal instrumental­
ity, could retroactively withdraw that consent despite the fact that
states had acquired liens in the interim. It brushed aside claims that a
Fifth Amendment violation had occurred with the observation that the
states could only enforce any rights they had acquired through a suit
against the United States, and “[n]o such suit may be maintained with­
out the consent of the United States. Such consent, though previously
granted, has now been withdrawn. And the power to withdraw the
privilege of suing the United States or its instrumentalities knows no
limitations.” Lynch v: United States, 292 U.S. 571, 581-582, and cases
cited.
   As Maricopa County recognized, Lynch has been decided against a
background of earlier cases in much the same vein. Illustrative is
District o f Columbia v. Eslin, 183 U.S. 62 (1901). Congress had enacted
a statute granting jurisdiction to the Court of Claims over certain
claims involving public works in the District of Columbia. Suits under
this act were pursued to judgment, but before the judgments were paid
Congress repealed the statute, explicitly providing that “proceedings
pending shall be vacated, and no judgment heretofore rendered in
pursuance of such act shall be paid.” 183 U.S. at 64, citing 29 Stat. 665,
669. The Court, asked to review the judgments of the Court of Claims,
dismissed the appeal for want of jurisdiction, on grounds that a Su­
preme Court declaration of the rights of the parties would now be
advisory. The Court stated:
       It was an act of grace upon the part of the United States
       to provide for the payment by the Secretary of the Treas­
       ury of the amount of any final judgment rendered under
       that act. And when Congress by the act of 1897 directed
       the Secretary not to pay any judgment based on the act of
       1895, that officer could not be compelled by the process
       of any court to make such payment in violation of the act
       of 1897. A proceeding against the Secretary having that
       object in view would, in legal effect, be a suit against the
       United States; and such a suit could not be entertained by
       any judicial tribunal without the consent of the Govern­
       ment.
183 U.S. at 65.
If this line of Supreme Court cases is still good law, Congress should be
able to withdraw the FTC A ’s waiver of sovereign immunity for pend­
ing claims of fallout victims, whether or not any administrative claims
system is created as a substitute. In view of the early practice of leaving
all claimants against the Government to seek relief from Congress,
                                   519
 followed for over a half-century of this nation’s existence, it is hard to
 dispute the Court’s conclusion that there is no constitutional right to a
judicial remedy. Indeed, FTCA claims would seem to be a fortiori from
Lynch and Perry, since tort claims do not involve vested rights pro­
 tected against substantive interference by Congress, as did that contract
 rights considered in those two cases. Thus, Congress could simply
amend the FTCA to add another exception to 28 U.S.C. § 2680, for
present and future claims arising from the activities of the United States
in conducting nuclear weapons tests at the Nevada Test Site. For a
number of reasons, however, we think it may be imprudent to rest
exclusively on the Lynch line of cases. First, the extensive dicta in
Lynch itself occurred in a case in which the Court was overturning a
congressional attempt to repeal the insurance statutes in question, as a
violation of the just compensation requirement of the Fifth Amend­
ment. Second, neither in Lynch itself nor in any later case has the Court
actually countenanced so harsh an action as the retroactive withdrawal
of an individual’s tort cause of action with little or no substitute
remedy.
    Moreover, in recent years the Supreme Court has substantially ex­
panded its definition of interests falling within the “property” that is
protected by the due process clause, including statutory entitlements to
many kinds of governmental benefits. See, e.g., Goldberg v. Kelly, 397
U.S. 254, 262 and n.8 (1970). This development may undermine Lynch's
characterization of a cause of action against the Government as a
“privilege.” See de Rodulfa v. United States, 461 F.2d 1240, 1258 (D.C.
Cir.), cert, denied, 409 U.S. 949 (1972). It can be argued that causes of
action resemble other government benefits in that even if there is no
initial right to have them, once they are conferred they may not be
withdrawn arbitrarily.
   Still, it must be recognized that the Court has yet to hold or even
suggest that withdrawal of a waiver of sovereign immunity is subject to
due process constraints. The issue of the effect of Goldberg and its
progeny on Lynch is an open one—accordingly, we cannot exclude the
possibility that abrogation of pending causes of action might receive
some scrutiny by the courts, as does other retroactive governmental
action.
   In addition, a leading sovereign immunity case has recognized a
“constitutional exception to the doctrine of sovereign immunity” that
allows the maintenance of a suit to contest an alleged taking of real
property by the Government without just compensation. Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 696 (1949), citing
United States v. Lee, 106 U.S. 196 (1882). This “exception” is inconsist­
ent with Lynch’s dictum that there is no right to a judicial remedy even
for claims of constitutional origin. Thus, if any of the fallout claimants

                                   520
can successfully characterize their injuries as takings, it might be possi­
ble for them to escape the bar of the Lynch line of cases.
   Finally, it may be that in substituting a fallout claims system for
existing causes of action, Congress will be unwilling explicitly to
reassert the bar of sovereign immunity. In recent years, Congress has
generally expanded, not contracted its waivers of sovereign immunity.
See, e.g.. Pub. L. No. 93-253, 88 Stat. 50, amending the FTCA to allow
recovery for torts of law enforcement officers, 28 U.S.C. § 2680(h).
And a reassertion of immunity against the fallout plaintiffs, even with a
substitute claims system, could have an appearance of harshness that
Congress would avoid if possible. If Congress were simply to create a
claims system and to provide for its exclusiveness as a remedy without
adding a new exception to the FTCA, the courts might conclude that
Congress had merely altered the remedy against the United States,
without reasserting sovereign immunity. The likelihood of such a result
is suggested by the Lynch Court’s unwillingness to treat an ambiguous
statute as a reassertion of soverign immunity. The consequence would
be to subject the statute to due process review, a prospect to which we
now turn.

        II. Due Process and Legislative Alteration of Causes of Action

   Shortly after Lynch was decided, the Supreme Court avoided reach­
ing due process objections to a statute retroactively substituting an
administrative claims system for a cause of action, by determining the
new remedy to be “fair and adequate.” In Anniston Mfg. Co. v. Davis,
301 U.S. 337 (1937), the plaintiff filed a lawsuit against the Collector of
Internal Revenue to obtain a refund of an allegedly illegal tax. Con­
gress then substituted an exclusive administrative remedy, which was
apparently designed to afford the same measure of recovery as the
abrogated cause o f action. 301 U.S. at 345, 351. The Government
argued that no decision on Congress’ power to withdraw suit against
the Collector and the Government was necessary since the new remedy
was “fair and adequate.” 2 The Supreme Court agreed and inquired into
the sufficiency of the statute’s provisions for administrative adjudicative
procedures and judicial review. It found them adequate to determine
pertinent questions of fact and law. 301 U.S. at 341-43. Thus Anniston
does not provide support for the validity of legislative substitution of
limited administrative benefits for the full measure of tort compensa­
tion. It does suggest that a claims system should employ well-estab­
lished techniques for administrative adjudication and subsequent judicial

   2 Tw o reasons may account for the Court's apparent perception of a need to avoid constitutional
issues in Anniston. The first is the “constitutional exception to sovereign immunity" in taking cases,
discussed in text above. The second is that the statute abrogated suits against both the Government
and the officer involved.

                                               521
review, such as those in the Administrative Procedure Act, 5 U.S.C.
§§ 556-557, 701-706.
   More recently, in Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U.S. 59 (1978), the Court upheld against a due process
challenge the Price-Anderson Act, 42 U.S.C. §2210, which limits the
liability of the nuclear power plant operators for the consequences of
accidents. The Court viewed the liability limitation as an ordinary
legislative balancing of economic interests, and accorded it standard
rationality review, which it passed readily. Of particular interest here is
the Court’s response to the plaintiffs argument that the liability limita­
tion offended due process by failing to provide those injured by a
nuclear accident with a satisfactory quid pro quo for the common law
rights of recovery which the Act restricted. The Court concluded that
the Act provided a “reasonably just substitute” for the tort law reme­
dies it replaced. 438 U.S. at 93. In support of the fairness of the
arrangement, the Court cited the assurance of a $560 million fund for
recovery, in place of the uncertain resources of private defendants, and
the A ct’s requirement that utilities waive state tort law defenses, which
eliminated requirements for proof of fault and accompanying delay and
uncertainty in litigation. The Court seemed to think that the Act placed
prospective plaintiffs in at least as favorable a position as they would
have occupied under the common law. Thus Duke Power, like Anniston,
provides little support for the validity of a system that materially
disadvantages claimants. The Court concluded:
           In the course of adjudicating a similar challenge to the
        Workmen’s Compensation Act in New York Central R.
        Co. v. White, 243 U.S. at 201, the Court observed that the
        Due Process Clause of the Fourteenth Amendment was
        not violated simply because an injured party would not be
        able to recover as much under the Act as before its
        enactment. “ [H]e is entitled to moderate compensation in
        all cases of injury, and has a certain and speedy remedy
        without the difficulty and expense of establishing negli­
        gence or proving the amount of the damages.” The logic
        of New York Central would seem to apply with renewed
        force in the context of this challenge to the Price-Ander-
        son Act. The Price-Anderson Act not only provides a
        reasonable, prompt, and equitable mechanism for compen­
        sating victims of a catastrophic nuclear incident, it also
        guarantees a level of net compensation generally exceed­
        ing that recoverable in private litigation. . . . This panoply
        of remedies and guarantees is at the least a reasonably just
        substitute for the common-law rights replaced by the
        Price-Anderson Act. Nothing more is required by the
        Due Process Clause.
438 U.S. at 92-93.
                                    522
In Duke Power, the Court was dealing with prospective legislation—no
claims for a nuclear accident were then outstanding. The legislation
upheld in New York Central appears to have been prospective also. The
Court’s approach to the validity of retroactive legislation under the
Due Process Clauses of the Fifth and Fourteenth Amendments is,
however, not greatly different from that of Duke Power, even though
substantial new burdens may be imposed. The ordinary standard is that
due process “generally does not prohibit retrospective civil legislation,
unless the consequences are particularly ‘harsh and oppressive’,” United
States Trust Co. o f New York v. New Jersey, 431 U.S. 1, 17 n. 13 (1977),
citing Welsh v. Henry, 305 U.S. 134, 147 (1938) and Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 14-20 (1976). In Usery, the Court
upheld the Black Lung Benefits Act, although it required mine opera­
tors to pay workman’s compensation benefits to miners on a retroactive
basis. The Court said:
         But our cases are clear that legislation readjusting rights
         and burdens is not unlawful solely because it upsets other­
         wise settled expectations. . . . This is true even though the
         effect of the legislation is to impose a new duty or liability
         based on past acts.
428 U.S. at 16.
In Usery, the Court thought that retroactive imposition of an obligation
to pay compensation was a rational application of the enterprise liability
principles of modern tort analysis, according to which a business may
be required to absorb the cost of the injuries it causes, regardless of the
presence of fault in the traditional sense. The Court remarked that
whether a broader or narrower cost-spreading scheme would be better
did not rise to the level of a constitutional issue. 428 U.S. at 19.
   Usery does not necessarily represent the high-water mark of judicial
willingness to allow retroactive legislative alteration of compensation
rights against private parties. The courts of appeals have upheld legisla­
tive abrogation of existing causes of action with no countervailing
benefit—at least where the causes of action were themselves in the
nature of windfalls, due to surprising judicial interpretation of earlier
statutory provisions.3 Both Usery and these court of appeals decisions
seem to rest on notions of fairness—it would be unsound to extend
them to the arbitrary alteration of compensation rights.


   3 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948) (Portal-to-Portal Act); Seese v.
Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948) (Portal-to-Portal Act). De Rodulfa v. United Stales,
461 F.2d 1240, 1250 (D.C. Cir.), cert, denied. 409 U.S. 949 (1972), cites cases for the general rule that a
change in governing law may be retroactively applied to pending litigation. E.g., United States v.
Schooner Peggy, 5 U.S. 103 (1 Cranch) (1801) (Marshall, J ). Indeed, such a change may even affect
rights incident to final judgments. See Fleming v. Rhodes, 331 U.S. 100 (1947), upholding requirements
for administrative approval of suits to enforce judgments granting possession to property.

                                                 523
   III. The Government’s Adjustment of Its Own Liabilities—Analogies
                       from the Contract Clause

    What standard of review should apply to a government’s adjustment
of its own preexisting obligations? In Usery and Duke Power, the Court
applied rationality scrutiny to federal statutes adjusting rights and bur­
dens among private parties. (In Duke Power, although federal indemnity
was a large part of the liability pool provided by the Price-Anderson
Act, the Government was not reducing its own prior liability.) In
litigation under the Contract Clause (art. I, § 10), which only applies to
the states, the Court has suggested that a more stringent standard
applies to a government’s attempt to modify its own obligations. In
United States Trust Co. o f New York v. New Jersey, supra, the Court
invalidated an attempt by New Jersey to modify a contract with some
of its bondholders. The state had eliminated an important security
provision for the bondholders, without granting them a countervailing
compensation. The Court remarked:
       The Contract Clause is not an absolute bar to subsequent
       modification of a State’s own financial obligations. As
       with laws impairing the obligations of private contracts,
       an impairment may be constitutional if it is reasonable and
       necessary to serve an important public purpose. In apply­
       ing this standard, however, complete deference to a legis­
       lative assessment of reasonableness and necessity is not
       appropriate because the State’s self-interest is at stake.
431 U.S. at 25-26 (footnote omitted).
   In general, federal cases under the Due Process Clause closely par­
allel the Contract Clause cases. This suggests that if the Court abandons
the view of sovereign immunity it articulated in Lynch, it is likely to
employ the higher level of scrutiny articulated in United States Trust
Co. when it reviews the Government’s adjustment of its own obliga­
tions—especially when the Government disadvantages private parties
retroactively with no compensating benefits. That does not mean that
such heightened scrutiny will necessarily apply in the case at hand.
Since there is presently genuine uncertainty regarding the ultimate cost
to the Government of pending FTCA litigation, it is not clear that the
substitution of a claims system will be seen principally as an “economy”
measure.
   It should be possible to draft a valid statute creating an exclusive
administrative claims system, even if the test of United States Trust Co.
is applied. In that case, the Court identified alternative means to the
state’s end, and emphasized the direct invasion of reliance that typically
attends a Contract Clause case. The latter is not present here; as for the
former, if the Government’s purpose is to provide a broader allocation
of benefits than the FTC A would produce, the only alternative would
                                   524
be to establish a nonexclusive administrative claims system, leaving
plaintiffs the option to pursue FTCA litigation. Although arguments for
governmental economizing were discounted by the United States Trust
Co. Court, that was probably because the state gave the bondholders no
countervailing benefit. That need not be true here; the need to conserve
limited public resources by making the administrative claims system
exclusive should be given enough weight to uphold the statute, if it
accords claimants sufficient advantages to ensure the fairness of the
overall result.

  IV. Application of Due Process Analysis to an Administrative Claims
                      System for Fallout Victims

   Assuming that due process applies in the case before us, the question
therefore seems to be whether an administrative claims system can
provide a “reasonably just substitute” (Duke Power) for existing causes
of action, or a “reasonable and necessary” means to “an important
public purpose” ( United States Trust Co.). For a statute to satisfy even
the more stringent of these tests, it should only be necessary that it
grant claimants substantial advantages as a quid pro quo for their causes
of action. A number of substantial hurdles presently stand in the way of
recovery by private plaintiffs under the Federal Tort Claims Act. First,
it is not clear that plaintiffs will be able to establish the Government’s
liability. The “discretionary function” exception of 28 U.S.C. § 2680(a)
will preclude liability for all planning decisions involved in the tests, as
opposed to operational ones. Dalehite v. United States, 346 U.S. 15
(1953). It has been held, however, that negligent failure to warn those
in the path of fallout is actionable. Bulloch v. United States, 133 F.
Supp. 885, 888 (D. Utah, 1955); but see Bartholomae Corp. v. United
States, 135 F. Supp. 651 (S.D. Cal., 1955) (no liability for damage from
atomic blast; duty to warn not discussed). Second, many plaintiffs may
be unable to prove that fallout caused their illness. Estimating the
dosage received by a particular individual and linking that to the
etiology of a particular cancer is, under all current assessments, often
very difficult. Third, some claims may be barred by the statute of
limitations, 28 U.S.C § 2401(b). (It has been held that the two-year
period runs from the time a radiogenic illness is discovered or should
have been discovered, and not from the date of exposure. Kuhne v.
United States, 267 F. Supp. 649 (E.D. Tenn., 1967).) In any event, the
litigation involved is sure to be time-consuming, considering the techni­
cal complexity of much of the proof. Still, it can be argued that
ultimate recovery to the successful plaintiff in a tort action would be in
a much higher amount than under an administrative claims system,
perhaps impelling the Government to enter favorable settlements of
some claims.
                                    525
   The particular structure of a claims system can help to ensure its
constitutional validity. First, eligibility criteria for filing claims can
reflect probabilities of both serious initial exposure levels to fallout and
the correlation of particular cancers with exposure to radiation. To the
extent that these criteria would allow compensation to some persons
whose showing of causation would not likely satisfy a trier of fact in
litigation, the Government will confer an advantage on claimants as a
class. Moreover, the program would be responding as precisely as
possible to increased risks that we know the affected population has
encountered, although we cannot be sure exactly which persons suf­
fered the greatest exposure or exactly which cancers are the result of
that exposure. Thus there is evident fairness in a set of eligibility
criteria based on probabilities.
   With regard to amounts of compensation, the larger the pool of
claimants the less feasible it becomes to approach full tort compensa­
tion. But insofar as compensation would duplicate that recovery, by
providing for medical expenses and perhaps some income support,
claimants are not disadvantaged. If recovery for pain and suffering is
the major element of tort recovery to be eliminated, the statute will
resemble other government compensation programs in that respect. It is
easier to justify a claims program that is on an entitlement basis, rather
than one payable from a limited fund.4
   The administrative procedures used to adjudicate claims are particu­
larly important, because they can eliminate procedural features of litiga­
tion that would proably defeat private claims, such as the pertinent tort
burdens of proof.5 As we commented above, the Administrative Proce­
dures Act provides a general structure for both adjudicative procedure
and judicial review.

                                             V. Conclusion

   From the foregoing, two central conclusions emerge. First, if the
primary goal of this proposed legislation is to minimize the risk of
successful constitutional challenge, the preferable course will be for this
bill plainly to indicate that it is Congress’ intent to rescind its waiver of
sovereign immunity for this class of cases. Lynch suggests that this
course presents no constitutional question—at least in terms of the
judicial reviewability of the action—and despite considerable develop­
ment in the analogous areas of the law discussed above, we know of no
direct precedent that would call into question the broad language of
that Supreme Court case. Second, even if the bill is reviewed under due

   4 If a limited fund is established, part can be reserved for illness that is still latent. This is a feature
of the Price-Anderson Act, 42 U.S.C. §2210(o).
   5 Administrative procedures often use flexible techniques not available to courts to achieve such
results. E.g., in Usery, the Act provided for rebuttable presumptions favoring claimants, for example
that deaths occurring in prior years had been due to black lung disease in stated circumstances.

                                                    526
process rationales discussed above, there is good reason to conclude
that it will comfortably survive attack so long as the eligibility criteria
are reasonably flexible, the amount of compensation reasonably gener­
ous, and the administrative process consistent with ordinary procedure
for adjudicating claims. We would be pleased to review further any
particular proposal.

                                     L arry A. H am m ond
                                  Deputy Assistant Attorney General
                                      Office o f Legal Counsel




                                   527
