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JGR/Testimony Approval (05/24/1983-06/13/1983)
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JGR/Testimony Approval (05/24/1983-06/13/1983)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(05/24/1983-06/13/1983)
Box: 53
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name ROBERTS, JOHN: FILES
Withdrawer
IGP
8/6/2005
File Folder
JGR/TESTIMONY/APPROVAL (05/24/1983 - 06/13/1983)
FOIA
F05-139/01
Box Number
53
COOK
65IGP
DOC Doc Type
Document Description
No of
Doc Date Restrictions
NO
Pages
1
LETTER
ROBERT MCCONNELL TO PETER
2
ND
B6
893
RODINO RE H.R. 743
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
00000000
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
May 24, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
Testimony on H.R. 743, for the
Relief of Theda June Davis
The Office of Legislative Affairs at the Department of
Justice is seeking OMB clearance of a letter to Chairman
Rodino, opposing enactment of H.R. 743, a bill for the
private relief of Ms. Theda June Davis. Davis was employed
by SER/Jobs for Progress, Inc., a federally funded
subgrantee of the City of Phoenix under the Economic
Opportunity Act of 1964. Davis won a discrimination suit
under Title VII against SER for $35,000 plus interest. SER
reportedly cannot pay because it is prohibited from using
federal grant funds for this purpose. The federal
government itself was not found culpable or liable. H.R.
743 would nonetheless give Davis her money from the federal
fisc.
The Department's letter opposes H.R. 743 on the usual
grounds: private bills lead to unequal results, and force
the federal government to pay even though it is legally
blameless. The letter also notes that interest under the
bill, if allowed, should be allowed pursuant to 28 U.S.C.
§ 1961, the general interest on judgments provision. I
contacted OLA concerning the reference to 28 U.S.C. § 2411 (b)
in the first paragraph; they agreed that was an error and it
will be changed. I see no other legal objections.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O OUTGOING
H INTERNAL
I INCOMING
Date Correspondence
/
/
Name
Received of Correspondent: (YY/MM/DD) Yolanda Branche
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
Certimone n H.R 743 for the
relief of Dheda June Davis
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
W Holland
ORIGINATOR 83,05,24
/
/
Referral Note:
WAT 18
# 8305124
583,05,25
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R. Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D. Draft Response
S - For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
U.S. Department of Justice
Weite
Assistant Attorney General
Legislative Affairs
SPECIAL
May 23, 1983
TO: Jeff Weinberg
OMB
FR:
Yolanda Branche
OLA (633-2111)
RE:
Testimony for Clearance
This is the Department's
proposed statement on H.R. 743,
for the relief of Theda June
Davis for the May 26 hearing
on H.R. 743.
ce: Fred F. Fielding
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
IGP 8/6/2005
File Folder
FOIA
JGR/TESTIMONY/APPROVAL (05/24/1983 - 06/13/1983)
F05-139/01
COOK
Box Number
53
65IGP
DOC Document Type
No of Doc Date Restric-
NO
Document Description
pages
tions
1 LETTER
2
ND
B6
893
ROBERT MCCONNELL TO PETER RODINO RE
H.R. 743
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
Testimer
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 24, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
OR
SUBJECT:
Statement on S. 52, The Armed
Career Criminal Act of 1983
Deputy Assistant Attorney General James Knapp proposes to
deliver the above-referenced statement to the Senate Judi-
ciary Committee on May 26. The statement express general
support for S. 52, which would create a new federal offense
covering persons with two or more robbery or burglary felony
convictions who commit another such offense while armed with
a firearm. The testimony takes care to stress that federal
prosecution under S. 52 would be very selective. Last
year's version of this bill was of course vetoed, in part
because of expressed constitutional reservations about a
provision giving local prosecutors a veto over federal
decisions to prosecute. This version of the bill contains a
section providing that cases lodged with local prosecutors
may only be considered for federal prosecution at the
request of the local prosecutor. The testimony objects to
this provision, and offers the alternative of an expression
in the statute of Congress' intent that federal prosecutions
normally not be brought unless the state or local prosecutor
concurs. The testimony also suggests that the prior offenses
be proved prior to attachment of jeopardy, to avoid double
jeopardy problems if one of the prior offenses is later
found to be constitutionally infirm, and that it not be
required that the defendant himself possess a firearm so
long as one of his cohorts did.
I see no legal objections.
Attachment
THE WHITE HOUSE
WASHINGTON
May 24, 1983
MEMORANDUM FOR GREGORY JONES
OFFICE OF MANAGEMENT AND BUDGET
Orig. signed by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement on S. 52, The Armed
Career Criminal Act of 1983
Counsel's Office has reviewed the above-referenced statement,
and finds no objection to it from a legal perspective.
FFF:JGR:aw 5/24/83
CC: FFFielding
JGRoberts
Subj.
Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
1 NCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Greg Joner
MI Mall Report
5.52 The armed Career Criminal (C)
User Codes: (A)
(B)
Subject:
act of 1983
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency (Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
W Halland
ORIGINATOR 83.05.24
/
Referral Note:
WAT 19 AT 18
D 83,05,24
583,05,25
Referral Note:
1
1
Referral Note:
Referral Note:
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I Info Copy Only/No Action Necessary
A
Answered
c Completed
c. Comment/Recommendation
R Direct Reply w/Copy
Non-Special Referral
S Suspended
D Draft Response
S For Signature
F
Furnish Fact Sheet
x Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response Initials of Signer
Code
"A"
Completion Date Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
U.S. Department of Justice
Assistant Attorney General
PVPTITIA
Legislative Affairs
IF YOU HAVE ANY COMMENTS PLEASE
CONTACT GREG JONES, 395-3802, OMB.
MAY 23 1993
Robuts
DRAFT
STATEMENT
OF
JAMES KNAPP
DEPUTY ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
BEFORE
THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
CONCERNING
S. 52
The Armed Career Criminal Act of 1983
ON
MAY 26, 1983
Mr. Chairman and Members of the Committee:
I am pleased to appear before the Committee today to express
the views of the Department of Justice on S. 52, The Armed Career
Criminal Act of 1983. The bill provides for the federal prosecu-
tion of persons who have already been convicted of two felony
robberies or burglaries under state or federal law and who commit
a third such offense while armed with a firearm. If found
guilty, a defendant so prosecuted would have to be sentenced to
imprisonment for at least fifteen years or to life imprisonment.
He could not be given a suspended or concurrent sentence and
would not be eligible for parole.
Initially, let me emphasize that the Department of Justice
supports the concept of this bill just as we supported the thrust
of its predecessor in the 97th Congress, S. 1688, which was
passed by the Senate on September 30, 1982 by a margin of 93-1.
We view this bill as a vehicle to allow the federal government to
assist the states in dealing with the major problems of hard core
recidivist robbers and burglars who prey on innocent persons in
all parts of this country. Local police, prosecutors, and court
systems in most instances would be able to deal with this threat.
In some cases there may be a genuine need, however, for federal
assistance. For example, court congestion, prison overcrowding,
inadequate state sentencing statutes or any number of other
factors may render state prosecution and punishment of a particu-
lar career robber or burglar inadequate or ineffective. We
anticipate that the provisions contained in S. 52 would be used
- 2 -
principally to help the states in a limited number of cases
reflecting these types of special situations. We believe we
share with the sponsors of this legislation an understanding that
its enactment is not intended to signal a general intervention by
the federal government into areas of law enforcement tradition-
ally the responsibility of state and local governments.
Having expressed the Department's general support for the
goals of this measure, let me now turn to some specific sugges-
tions we have for improving the legislation. The heart of S. 52
is section two which sets out the offense in a new section 2118
of title 18. We strongly believe, initially, that subsection
2118 (e) should be deleted. The question of federal intervention
into cases where our involvement is not deemed necessary by the
local prosecutor, should be handled as a statement of Congres-
sional intent in a revised section four of the bill.
As presently drafted, subsection 2118(e) is apparently an
attempt to overcome the Administration's chief problem with the
version of this bill that was passed in H.R. 3963 and S. 1688 in
the last Congress. Those bills would have allowed a state or
local prosecutor to veto any federal prosecution in his district
even if the Attorney General had approved prosecution. Such a
restraint on federal prosecutorial discretion and delegation of
executive responsibility would have raised grave constitutional
and practical concerns.
- 3 -
Subsection (e) does appear to overcome these constitutional
difficulties by leaving the ultimate decision on whether to seek
a federal indictment to federal prosecutors. However, the
subsection provides that a case "lodged" in the office of a local
prosecutor -- apparently because it has been presented by the
local police -- may be received and considered for federal
prosecution only on the request of the local prosecuting author-
ity. It is not clear how the United States Attorney's office
would ever officially be made aware of such a case if the state
prosecutor did not request its consideration. If federal
authorities found out about such a case unofficially they could
still seek an indictment in spite of what the state prosecutor
might want, but the assertion of federal power in such a manner
is hardly conducive to good federal-state relations. There is
no rational basis for making even the initial determination
whether the state or the federal government should prosecute
turn on whether a state or federal agency investigated and
presented the case. The justification for any federal involve-
ment in this area of traditional state responsibility is to aid
the states in certain unique cases. This aid necessitates close
coordination and cooperation between state and federal investiga-
tors and prosecutors which can often best be obtained by
consultations and decisions on a case-by case basis.
1/ It should be noted that the FBI would be the federal agency
with investigative jurisdiction over the new offense. The
FBI's resources are limited, as are those of local jurisdic-
tions. We would emphasize the FBI jurisdiction would be
exercised very selectively under the new section.
- 4 -
We recommend that the proposed subsection 2118(e) be deleted
and that a new clause be inserted in Section 4 expressing
forcefully the intent of Congress that no prosecutions should
normally be brought under this provision unless the state or
local prosecutor requests or concurs in federal prosecution.
Since Section 4 is non-jurisdictional in nature, this language
would be consistent with our previously expressed concerns
regarding the constitutionality of a local veto provision while
at the same time it would minimize the risk of disrupting
important federal-local law enforcement relationships when
prosecutions are brought under this statute.
We have three other concerns with section 2118 as set out in
the bill. First, and of most significance, we believe that the
prior felony convictions which provide the federal jurisdictional
basis should be established prior to the attachment of jeopardy.
If verification of this jurisdictional element is left until
sentencing, a "defective" prior conviction, e.g., one in which
the defendant did not have counsel at the entry of a prior plea,
could nullify the entire prosecution because double jeopardy
considerations would prevent retrial. We suggest the inclusion
of language which requires the prosecution to notify the court
and the defendant, prior to the attachment of jeopardy, of the
prior convictions relied upon to establish jurisdiction and
mandate that the defendant contest the validity of any such
conviction prior to the attachment of jeopardy on the underlying
offense.
- 5 -
Moreover, section 2118(a) is silent on the question of how
the possession of the firearm, which is also a requirement for
federal jurisdiction, is to be shown. Presumably, it is intended
as an element of the offense which must be proven to the trier of
fact, inasmuch as the section's application is intended to be
limited to firearm-carrying recidivists, but the prior convic-
tions requirement is explicitly not made an element. Thus, it
appears that a conviction under section 2118(a) would require
proof of possession of a firearm plus proof of all the elements
of the state or federal statute that the defendant is charged
with having violated. We suggest that this point be specifically
confirmed in the legislative history. 2/
Finally, we think that the requirement that the firearm be
in the actual possession of the robber or burglar who has already
been convicted twice is too narrow. We believe that the statute
should cover such a recidivist robber or burglar while he or any
other participant in the offense is in possession of or has
readily available to him a firearm or an imitation thereof. Under
the provisions of the bill as drafted, a recidivist who planned
and organized a particularly life-endangering armed robbery or
burglary involving several persons could remove himself from the
2/ Since the terms "robbery" and "burglary" are not defined in
the proposed statute, we recommend that the legislative
history also make it clear that the terms are not limited to
their common law meaning and include state offenses that do
not use the words "robbery" or "burglary," such as a statute
that proscribes criminal entry with different gradations for
the types of structures entered and the act committed
therein. See United States V. Nardello, 393 U.S. 286 (1969).
- 6 -
reach of the new section simply by having his confederates carry
all the firearms. As the Committee knows, in certain types of
robberies, like bank robberies, it is not uncommon for one or two
persons to actually hold the weapons while others remove the
money. Since there is no meaningful difference in their degree
of culpability, all participants who have the two prior convic-
tions would be covered by the new statute.
We also suggest that the bill would be strengthened and
needless problems avoided if it were amended to include Congres-
sional findings. The proposed statute obviously relies on the
commerce power of Congress, but the elements of the offense
itself do not require a showing that the crime involved inter-
state commerce. However, under the Commerce Clause, Congress has
the power to regulate even purely intrastate activity where that
activity, combined with like conduct by others similarly situ-
ated, affects commerce among the states, See, e.g., National
League of Cities V. Usery 426 U.S. 833, 840 (1976). Congres-
sional findings on the effect of armed robbery and burglary on
interstate commerce, like those made with respect to the effect
on commerce of extortionate credit transactions, 18 U.S.C. 891-
896, would facilitate the bill's withstanding a constitutional
challenge. See Perez V. United States, 402 U.S. 146 (1971). It
is anticipated that the bill's heavy mandatory sentence provi-
sion, while fully justified by the nature of the offense, will
cause it to undergo detailed judicial scrutiny.
- 7 -
Mr. Chairman, that concludes my concludes my prepared
testimony and I would be happy to try to answer any questions the
committee may have.
Extrimony
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 24, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS USR
SUBJECT:
Statement on Parental Kidnapping
Prevention Act of 1980
Lawrence Lippe, Chief of the General Litigation Section of
the Department of Justice's Criminal Division, proposes to
deliver the above-referenced statement before the Senate
Subcommittee on Juvenile Justice tomorrow, May 25. The
statement is simply the latest episode in the recurring
dispute between the FBI and the Congress on the use of the
unlawful flight statute, 18 U.S.C. § 1073, in child custody
cases. Congress, in response to tearful witnesses, wants
the FBI to help foil abductions of children by one estranged
spouse from the other, and provided in the Parental Kidnapping
Act of 1980 that 18 U.S.C. § 1073 be used for this purpose.
The Bureau does not want to get involved in such domestic
disputes, and views 18 U.S.C. § 1073 -- historically
designed for the hunting of dangerous fugitives -- as an
inapt vehicle. After the 1980 Act the FBI issued guidelines
authorizing FBI jurisdiction in such cases under 18 U.S.C.
§ 1073 only if the state requesting such assistance were
committed to extraditing the fleeing parent and prosecuting
him or her as a fugitive (as opposed to simply using the FBI
to locate the child) and the child were in danger of abuse
or neglect. This policy was criticized and, last December,
Justice suspended the guidelines, leaving the decision
whether to invoke jurisdiction under 18 U.S.C. § 1073 to the
individual U.S. Attorneys. Lippe's testimony reviews this
history and explains the suspension of the guidelines.
I see no legal objections. There is a typographical error
on a critical date which should be corrected.
Attachment
THE WHITE HOUSE
WASHINGTON
May 24, 1983
MEMORANDUM FOR GREGORY JONES
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Crig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement on Parental Kidnapping
Prevention Act of 1980
Counsel's Office has reviewed the above-referenced statement,
and finds no objection to it from a legal perspective. On
page 7, line 10, I assume "1983" should be "1982."
FFF:JGR:aw 5/24/83
CC: FFFielding
GRoberts
Subj.
Chron
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
D OUTGOING
H 4 INTERNAL
I
INCOMING
Date Correspondence
Received (YY/MM/DD)
/
Name of Correspondent:
Grig Jones
MI Mail Report
User Codes: (A)
(B)
Subject:
Parental Kednaping Prevention (C)
act of 1980
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency (Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
w Holland
ORIGINATOR 83,0524
/
(
Referral Note:
WAT 18
A 83.05.24
58310524
Referral Note:
/
/
/ /
Referral Note:
I
/
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
1
Info Copy Only/No Action Necessary
A Answered
Completed
G Comment/Recommendation
BE Direct Reply w/Copy
B Non Special Referral
S Suspended
0 Draft Response
B For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response Initials of Signer
Code = "A"
Completion Date
Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
U.S. Department of Justice
Assistant Attorney General
verms
Legislative Affairs
MAY 21 1983
IF YOU HAVE ANY COMMENTS
PLEASE CONTACT GREG JONES,
395-3802, OMB
DRAFT
NOT FINAL C
Statement
of
Lawrence Lippe, Chief
General Litigation and Legal Advice Section
Criminal Division
before the
Committee on the Judiciary
Subcommittee on Juvenile Justice
United States Senate
concerning
THE PARENTAL KIDNAPING PREVENTION ACT OF 1980
May 25, 1983
Thank you for the opportunity of appearing here today to
discuss with the Subcommittee the actions taken by the
Prevention
Department of Justice to implement the Parental Kidnaping, Act
of 1980 (PKPA) as it relates to the issuance of unlawful flight
to avoid prosecution warrants. As you know, in Section 10 of
the PKPA, Congress expressly declared its intent that the
unlawful flight statute (18 U.S.C. 1073) apply to cases
involving parental kidnaping and resulting interstate or.
international flight to avoid prosecution under applicable
state felony statutes.
The unlawful flight statute makes it a Federal crime to
travel in interstate or foreign commerce with the intent to
avoid prosecution for a felony offense under the laws of the
place from which the fugitive flees. To obtain an arrest
warrant for unlawful flight, there must be probable cause to
believe that an individual charged with a state felony offense
has fled from that state and that his flight was for the
purpose of avoiding prosecution.
Although drawn as a penal statute and, therefore,
permitting prosecution in Federal court for its violation, the
primary purpose of the unlawful flight statute is to provide
the FBI with a jurisdictional basis for assisting state law
enforcement agencies in the location and apprehension of
- 2 -
fugitives from state justice. Therefore, prosecutions for
violations of the unlawful flight statute are extremely rare.
In fact, the statute prohibits prosecution unless formal
written approval of the Attorney General or an Assistant
Attorney General is obtained.
The unlawful flight statute is not an alternative to
interstate extradition. When the FBI locates and arrests an
individual on an unlawful flight warrant, the arresting agents
normally turn the fugitive over to law enforcement authorities
in the asylum state to await extradition or waiver of
extradition, and the unlawful flight charge is then dismissed.
Therefore, as a matter of policy, we require that any state law
enforcement agency requesting FBI assistance, under the
unlawful flight statute, give assurances that they are
determined to take all necessary steps to secure the return of
the fugitive from the asylum state, and that it is their
intention to bring the fugitive to trial on the state charges
for which he is sought.
Similarly, as a matter of policy, FBI assistance is not
authorized when the location of the fugitive is known to the
requesting state law enforcement agency. In such cases, the
state seeking the fugitive can initiate an interstate
extradition proceeding and request state law enforcement
authorities in the asylum state to place the fugitive in
- 3 -
custody until there has been a resolution of the extradition
proceeding. For more than twenty years, ago, the Congress has
recognized that the unlawful flight statute is a vehicle in aid
of the extradition process; and that FBI involvement is
normally limited to those criminal cases in which the state has
denonstrated sufficient interest in obtaining the return of the
fugitive to warrant incurring the necessary expense incident to
extradition. H.R. Rep. No. 827, 87th Congress, 1st Session
(1961).
until
had
It has been a longstanding policy of the Department to
avoid involving Federal law enforcement authorities in domestic
relations controversies, including parental abduction
situations. This policy had been based, in part, on the
parental abduction exemption in the Federal kidnaping statute,
from which we inferred a Congressional intent that Federal law
enforcement agencies stay out of such controversies.
Consistent with that policy, the Department, prior to the PKPA,
did not authorize FBI involvement under the unlawful flight
statute for the purpose of apprehending a parent charged with a
child custody related felony offense. In rare instances, the
Department made exceptions to this policy in situations where
there was "convincing evidence that the child was in danger of
serious bodily harm as a result of the mental condition or past
behavior patterns of the abducting parent."
- 4 -
Shortly after passage of the PKPA, the Department's policy
guidelines limiting involvement in parental kidnaping, under
the unlawful flight statute, were reviewed, modified and made
less restrictive. It became the Department's policy that, as a
matter of prosecutorial discretion, the filing of unlawful
flight complaints, based on child custody related felony
offenses, would be authorized if, in addition to having
probable cause to believe that a violation of the unlawful
flight statute had occurred, and the requesting state law
enforcement agency was committed to extradite and prosecute the
offending parent, there also was independent credible
information that the victim child was in physical danger or was
then in a condition of abuse or neglect. Very simply, our
policy guidelines were relaxed by reducing the standard from
"serious bodily harm" to an "abuse or neglect" standard.
Further, in an effort to achieve a uniform nationwide
application of these policy guidelines, we required Criminal
Division authorization prior to the filing of such complaints.
The PKPA also requires the Attorney General to report
semi-dunnually
simiannually to the Congress on the Department's imp Imentation
of the Act. It was determined that the FBI would assume
responsibility for compiling data relating to parental
also
kidnaping complaints. It was decided that in keeping with the
spirit of the PKPA, the FBI would compile data on all
- 5 -
complaints alleging parental abductions, rather than limiting
the data only to requests received from state law enforcement
agencies. Since passage of the PKPA, the Department has
submitted five reports to the Congress setting forth our
efforts to implement the Act as well as the accumulated
statistical data relating to the issuance of unlawful flight
warrants in child custody related felony cases.
In calendar year 1981, the Department took action on 129
law enforcement requests for unlawful flight warrants in
parental kidnaping cases. Consistent with our parental
kidnaping policy guidelines, FBI involvement was authorized in
48 cases and was declined in 81 cases. In calendar year 1982,
FBI involvement was authorized in 46 such cases and was
declined in 36 cases. Although there was no formal data
compilation prior to the PKPA, the FBI has informed us that in
the seven years prior to the PKPA, FBI involvement was
authorized in a total of 49 cases, an average of seven cases
per year. Clearly, there was a significant increase in the
level of FBI involvement in parental kidnapings in the first
two years after passage of the PKPA.
As you know, our parental kidnaping policy guidelines have
been the subject of considerable criticism by members of
Congress and others. We think it is important to note,
however, that of the 117 law enforcement requests that were
- 6 -
declined in 1981 and 1982, a substantial number of these
requests were declined for reasons wholly independent of our
parental kidnaping policy guidelines. For example, we
regularly received requests for FBI involvement in situations
in which the accused parent was living at a known location in
another state, or in which the accused parent had obtained a
presumptively valid custody decree in another state. Clearly,
there was no need for FBI fugitive hunts in such situations.
Based on numerous inquiries received by the Department, it
appears that many complaining parents and others are under the
mistaken impression that the PKPA authorizes the FBI to seek an
unlawful flight warrant based on the parent's complaint, as
cpposed to a state law enforcement request. It further appears
that many concerned parents are under the mistaken impression
that an unlawful flight warrant authorizes the FBI to locate
and return abducted children to the custodial parents. In
response to inquiries from FBI agents in the field, we have
advised that the PKPA and the unlawful flight statute confer no
authority on the arresting agents to take custody of a
fugitive's child. Very simply, an unlawful flight warrant
gives the arresting agents authority to take into custody only
the person or persons named in the warrant. We further
suggested that when a fugitive is arrested in the company of a
child, it may be proper and appropriate to leave the child with
- 7 -
a responsible adult relative or friend of the fugitive. If no
responsible adult is available, the arresting agents would
arrange for the local child welfare agency to take custody of
the child.
In the latter part of 1982, the Department undertook
another review of the parental kidnaping policy guidelines. As
a result of this review, a determination was made that the
guidelines would be suspended indefinitely. This policy
decision was communicated to all United States Attorneys'
Offices by a teletype dated December 23, 1983. In
approximately one year, we will review this our policy; change, As a result
of this decision, parental kidnaping felonies now are handled
on the same basis as other fugitive felon requests. In the
first three months after suspension of the guidelines, FBI
involvement was authorized in 38 parental kidnaping felony
cases and was declined in 3 cases.
It continues to be the Department's position that the
unlawful flight statute is to be used for the purpose of
assisting state law enforcement authorities in serious criminal
cases, and that the statute should not be used merely as a
pretext for enforcing compliance with child custody decrees.
Unfortunately, our experience has shown that, in some cases,
state prosecutors have declined to seek extradition of accused
parents, arrested on unlawful flight warrants, the issuance of
- 8 -
which they had requested. We have advised United States
Attorneys that care should be taken not to authorize warrants
where thère is reason to believe the state will not extradite
and prosecute once the fugitive is located and arrested by the
FBI.
Since Dëcember 23, 1982, authorization to file unlawful
complaints in child custody related felony offenses is a matter
entirely within the sound discretion of the various United
States Attorneys. The Criminal Division, of course, remains
available for consultation and advice in all fugitive cases.
We expect that this policy change will significantly increase
FBI assistance to state law enforcement agencies seeking
fugitives wanted for parental kidnaping felony prosecutions.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
June 7, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTSOR
SUBJECT:
Proposed Statement by Deputy
Assistant Attorney General
Vance on Section 213 of H.R. 2797
Sue Thau of OMB has requested clearance of the above-referenced
testimony, scheduled to be delivered at 2:30 today. Section
213 of H.R. 2797, the Department of Energy authorization bill,
would substitute the United States for independent contractors
in nuclear weapons testing lawsuits. By contract the United
States already reimburses the contractors for any liability,
including costs of litigation. The proposed testimony recog-
nizes this fact and states that the Administration does not
oppose substituting the United States for the contractors in
suits. The testimony, however, recommends that section 213 be
amended so that suits proceed under the Federal Tort Claims
Act, with all its exceptions and limitations.
I see no legal objections. The United States is already
liable in these suits, and the proposal to have them proceed
under the Tort Claims Act is advantageous to the government.
I will call Sue Thau if you agree.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o OUTGOING
H INTERNAL
s INCOMING
Date Correspondence
Received (YY/MM/DD)
Sue Than
Name of Correspondent:
MI Mall Report
User Codes: (A)
(B)
(C)
Subject: Statement of B. Wayne Vance concuming
for final year 1984, and for the purposes
Dept of Energy for Mational Sccurity Proglams
H.R. 2797 to authorize appropriation for the
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
w Holland
ORIGINATOR 83106107
/
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Referral Note:
WATIS
A 83/06/07
$ 83,06,07
Referral Note:
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/
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
1 Info Copy Dniy/No Action Necessary
A Answered
C
Completed
C Comment/Recommendation
R Direct Reply w/Dopy
B Non Special Referral
S
Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response
Initials of Signer
Code
"A"
Completion Date
Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
DRAFT
STATEMENT
OF
B. WAYNE VANCE
DEPUTY ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 2797
TO AUTHORIZE APPROPRIATIONS FOR THE
DEPARTMENT OF ENERGY FOR NATIONAL
SECURITY PROGRAMS FOR FISCAL YEAR 1984,
AND FOR OTHER PURPOSES
to bc delivered
at 2:30 pm
TODAY
DRAFT
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
I am pleased to appear before you today in response to
your invitation to discuss Section 213 of H.R. 2797. Section
213 would clarify the status of certain contractors operating
government-owned facilities relating to atomic energy national
defense activities.
Litigation arising from alleged exposure to toxic substan-
aces has increased enormously over the past several years.
Asbestos, Agent Orange, toxic chemicals and radiation exposure
are among the subject matters which increasingly are the focal
points of litigation. As a part of this unprecedented surge in
litigation, many actions have been brought against certain
contractors who have invaluably assisted the Government of the
United States in carrying out its nuclear weapons testing pro-
gram. The actions allege exposure to radiation as a result of
weapons testing.
The provisions of the Federal Tort Claims Act provide the
rights of individuals and corporate litigants to seek monetary
recovery from the United States for alleged torts, including
those arising from exposure to toxic substances. Typically,
the United States cannot be sued for and is not liable for the
acts of independent contractors providing goods or services to
the United States. However, contractors who operate nuclear
DRAFT
weapons testing facilities for the Department of Energy or its
predecessor agencies and, as a result, have participated in
the atmospheric nuclear testing program are unique. These
contractors were and are utilized by the United States as
instruments of national policy to assist in an entirely
governmental task--nuclear weapons research, development and
testing. Further, the government reimburses the contractors
for any liability arising out of their assistance in the weapons
program, including the costs of litigation. Although the use of
the contractors to implement national policy and perform a
uniquely governmental function cannot be disputed, their status
and relationship to the United States in litigation arising
from our nuclear weapons testing has not been as clear as it
should be. Section 213 would clarify this status and relation-
ship. Because the United States, through the Department of
Energy's predecessor agencies, was exclusively responsible
for, and in control of, the atmospheric atomic weapons testing
program, the Administration does not oppose amendment of H.R.
2797 to recognize and give effect to the unique role of these
contractors.
As drafted, Section 213 of H.R. 2797 seeks the result
suggested above. I suggest, however, that the Congress con-
sider revision of Section 213 to avoid ambiguities in the
2
DRAFT
operation of the provision and its effect. I am submitting
with my Statement a proposed substitute for Section 213 as it
presently stands. This substitute would cause all litigation,
including suits now filed against contractors, to be maintained
against the United States pursuant to the provisions of the
Federal Tort Claims Act. The substantive provisions of the
Tort Claims Act would not be affected. Thus, suits would
proceed to the extent that the Tort Claims Act permits, sub-
ject to the substantive and procedural provisions of that
general statute. Thereafter, the exceptions and limitations
in the Act, including the doctrine enunciated in Feres V.
United States, 340 U.S. 135 (1960), would apply in each suit
covered by Section 213 in which a final judgment had not been
entered as of the date of enactment. Thus, the Federal Tort
Claims Act would exclusively determine the liability of the
United States for acts or omissions, including any allegations
against these contractors, in the conduct of the atmospheric
atomic weapons testing program. Because the United States
conducted the tests and because the existing contracts require
the United States to reimburse the contractors for any judgments
entered against them, the proposed Section 213 would sensibly
clarify the status of the contractors in relation to the litiga-
tion or potential litigation; the Federal Tort Claims Act
provides a time-tested framework for effecting this result.
3
DRAFT
Therefore, if legislation to clarify the status of these unique
contractors is deemed desirable by Congress, I recommend this
revised version of Section 213.
4
DRAFT
SUBJECT: Amendment to Proposed Section 213 of H.R. 2797
Proposed section 213 should be amended to read as follows:
(a) The remedy against the United States provided by sections
1346 (b) and 2672 of Title 28 of the United States Code for injury
or loss of property or personal injury or death shall apply to any
civil action for injury or loss of property or personal injury or
death due to exposure to radiation based on acts or omissions by a
contractor in carrying out a contract in the conduct of the United
States atmospheric atomic weapons testing program. This remedy
shall be exclusive of any other civil action or proceeding
for the purpose of determining civil liability arising from any
act or omission of the contractor without regard to when the act
or omission occurred. The employees of such a contractor shall be
considered to be employees of the Government, as specified in 28
U.S.C. $2671, for the purposes of any such civil action or
proceeding and the civil action or proceeding shall proceed in the
same manner as any action against the United States filed pursuant
to 28 U.S.C $1346(b), and shall be subject to the limitations and
exceptions applicable to those actions.
(b) A contractor against whom a civil action or proceeding
described in subsection (a) is brought shall promptly deliver all
process served upon that contractor to the Attorney General. Upon
certification by the Attorney General that the suit against the
contractor is within the provisions of subsection (a) of this
section, a civil action or proceeding commenced in a State court
shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States for
the district and division embracing the place wherein it is pending
and the proceedings shall be deemed a tort action brought against
the United States under the provisions of Section 1346(b), 2401(b),
2402, 2671-2680, of Title 28 of the United States Code, and all
references thereto. For purposes of removal, the certification by
the Attorney General under this subsection establishes contractor
status conclusively.
DRAFT
2
(c) The provisions of this section shall apply to any action
now pending or hereafter commenced which is an action within the
provisions of subsection (a) of this section. Notwithstanding
section 2401(b) of Title 28, United States Code, if a civil action
or proceeding pending on the date of enactment of this section is
dismissed because the plaintiff in such action or proceeding did
not file an administrative claim as required by section 2672 of
that Title, the plaintiff in that action or proceeding shall have
30 days from the date of the dismissal or two years from the date
upon which the claim accrued, whichever is later, to file an
administrative claim and any claim or subsequent civil action or
proceeding shall thereafter be subject to the provisions of
section 2401(b) of Title 28.
(a) For purposes of this section, "contractor" includes a
contractor or subcontractor of any tier operating a facility for
the Department of Energy (or its predecessor agencies) partici-
pating in the conduct of the United States Atmospheric atomic
weapons testing program. "Contractor" also includes facilities
which conduct or have conducted research concerning health
effects of ionizing radiation in connection with the testing
under contract with the Department of Energy (or its predecessor
agencies).
DRAFT
STATEMENT
OF
B. WAYNE VANCE
DEPUTY ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
BEFORE
THE
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING
H.R. 2797
TO AUTHORIZE APPROPRIATIONS FOR THE
DEPARTMENT OF ENERGY FOR NATIONAL
SECURITY PROGRAMS FOR FISCAL YEAR 1984,
AND FOR OTHER PURPOSES
DRAFT
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
I am pleased to appear before you today in response to
your invitation to discuss Section 213 of H.R. 2797. Section
213 would clarify the status of certain contractors operating
government-owned facilities relating to atomic energy national
defense activities.
Litigation arising from alleged exposure to toxic substan-
aces has increased enormously over the past several years.
Asbestos, Agent Orange, toxic chemicals and radiation exposure
are among the subject matters which increasingly are the focal
points of litigation. As a part of this unprecedented surge in
litigation, many actions have been brought against certain
contractors who have invaluably assisted the Government of the
United States in carrying out its nuclear weapons testing pro-
gram. The actions allege exposure to radiation as a result of
weapons testing.
The provisions of the Federal Tort Claims Act provide the
rights of individuals and corporate litigants to seek monetary
recovery from the United States for alleged torts, including
those arising from exposure to toxic substances. Typically,
the United States cannot be sued for and is not liable for the
acts of independent contractors providing goods or services to
the United States. However, contractors who operate nuclear
DRAFT
weapons testing facilities for the Department of Energy or its
predecessor agencies and, as a result, have participated in
the atmospheric nuclear testing program are unique. These
contractors were and are utilized by the United States as
instruments of national policy to assist in an entirely
governmental task--nuclear weapons research, development and
testing. Further, the government reimburses the contractors
for any liability arising out of their assistance in the weapons
program, including the costs of litigation. Although the use of
the contractors to implement national policy and perform a
uniquely governmental function cannot be disputed, their status
and relationship to the United States in litigation arising
from our nuclear weapons testing has not been as clear as it
should be. Section 213 would clarify this status and relation-
ship. Because the United States, through the Department of
Energy's predecessor agencies, was exclusively responsible
for, and in control of, the atmospheric atomic weapons testing
program, the Administration does not oppose amendment of H.R.
2797 to recognize and give effect to the unique role of these
contractors.
As drafted, Section 213 of H.R. 2797 seeks the result
suggested above. I suggest, however, that the Congress con-
sider revision of Section 213 to avoid ambiguities in the
2
DRAFT
operation of the provision and its effect. I am submitting
with my Statement a proposed substitute for Section 213 as it
presently stands. This substitute would cause all litigation,
including suits now filed against contractors, to be maintained
against the United States pursuant to the provisions of the
Federal Tort Claims Act. The substantive provisions of the
Tort Claims Act would not be affected. Thus, suits would
proceed to the extent that the Tort Claims Act permits, sub-
ject to the substantive and procedural provisions of that
general statute. Thereafter, the exceptions and limitations
in the Act, including the doctrine enunciated in Feres V.
United States, 340 U.S. 135 (1960), would apply in each suit
covered by Section 213 in which a final judgment had not been
entered as of the date of enactment. Thus, the Federal Tort
Claims Act would exclusively determine the liability of the
United States for acts or omissions, including any allegations
against these contractors, in the conduct of the atmospheric
atomic weapons testing program. Because the United States
conducted the tests and because the existing contracts require
the United States to reimburse the contractors for any judgments
entered against them, the proposed Section 213 would sensibly
clarify the status of the contractors in relation to the litiga-
tion or potential litigation; the Federal Tort Claims Act
provides a time-tested framework for effecting this result.
3
DRAFT
Therefore, if legislation to clarify the status of these unique
contractors is deemed desirable by Congress, I recommend this
revised version of Section 213.
4
DRAFT
SUBJECT: Amendment to Proposed Section 213 of H.R. 2797
Proposed section 213 should be amended to read as follows:
(a) The remedy against the United States provided by sections
1346(b) and 2672 of Title 28 of the United States Code for injury
or loss of property or personal injury or death shall apply to any
civil action for injury or loss of property or personal injury or
death due to exposure to radiation based on acts or omissions by a
contractor in carrying out a contract in the conduct of the United
States atmospheric atomic weapons testing program. This remedy
shall be exclusive of any other civil action or proceeding
for the purpose of determining civil liability arising from any
act or omission of the contractor without regard to when the act
or omission occurred. The employees of such a contractor shall be
considered to be employees of the Government, as specified in 28
U.S.C. $2671, for the purposes of any such civil action or
proceeding and the civil action or proceeding shall proceed in the
same manner as any action against the United States filed pursuant
to 28 U.S.C $1346(b), and shall be subject to the limitations and
exceptions applicable to those actions.
(b) A contractor against whom a civil action or proceeding
described in subsection (a) is brought shall promptly deliver all
process served upon that contractor to the Attorney General. Upon
certification by the Attorney General that the suit against the
contractor is within the provisions of subsection (a) of this
section, a civil action or proceeding commenced in a State court
shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States for
the district and division embracing the place wherein it is pending
and the proceedings shall be deemed a tort action brought against
the United States under the provisions of Section 1346(b), 2401(b),
2402, 2671-2680, of Title 28 of the United States Code, and all
references thereto. For purposes of removal, the certification by
the Attorney General under this subsection establishes contractor
status conclusively.
DRAFT
2
(c) The provisions of this section shall apply to any action
now pending or hereafter commenced which is an action within the
provisions of subsection (a) of this section. Notwithstanding
section 2401 (b) of Title 28, United States Code, if a civil action
or proceeding pending on the date of enactment of this section is
dismissed because the plaintiff in such action or proceeding did
not file an administrative claim as required by section 2672 of
that Title, the plaintiff in that action or proceeding shall have
30 days from the date of the dismissal or two years from the date
upon which the claim accrued, whichever is later, to file an
administrative claim and any claim or subsequent civil action or
proceeding shall thereafter be subject to the provisions of
section 2401 (b) of Title 28.
(d) For purposes of this section, "contractor" includes a
contractor or subcontractor of any tier operating a facility for
the Department of Energy (or its predecessor agencies) partici-
pating in the conduct of the United States Atmospheric atomic
weapons testing program. "Contractor" also includes facilities
which conduct or have conducted research concerning health
effects of ionizing radiation in connection with the testing
under contract with the Department of Energy (or its predecessor
agencies).