CT-43A Federal Employee Settlement Act and Federal Tort Claims Arising Outside the United States

SPEAKERS       CONTENTS       INSERTS

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66–212

2000
CT-43A FEDERAL EMPLOYEE SETTLEMENT ACT AND FEDERAL TORT CLAIMS ARISING OUTSIDE THE UNITED STATES

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON
H.R. 3295 and H.R. 1371

JUNE 8, 2000

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Serial No. 130

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California

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LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida

SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel

C O N T E N T S

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HEARING DATE
    June 8, 2000

TEXT OF BILL

    H.R. 3295
    H.R. 1371

OPENING STATEMENT

    Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims

WITNESSES

    Darling, Darrell W.

    Dolbert, Kenneth W. and Maureen

    Farr, Hon. Sam, a Representative in Congress From the State of California

    Jacobsohn, Robin E., Deputy Assistant, Attorney General, Civil Division, Department of Justice

    Norton, Hon. Eleanor Holmes, a Delegate in Congress From the District of Columbia

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    Poling, Nora

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Bilmes, Linda J., Chief Financial Officer and Assistant Secretary for Administration: Prepared statement

    Darling, Darrell W.

    Dolbert, Kenneth W. and Maureen: Prepared statement

    Farr, Hon. Sam, a Representative in Congress From the State of California: Prepared statement

    Forbes, Hon. Michael, a Representative in Congress From the State of New York: Prepared statement

    Gekas, Hon. George W., a Representative in Congress From the State of Pennsylvania: Prepared statement

    Jacobsohn, Robin E., Deputy Assistant, Attorney General, Civil Division, Department of Justice: Prepared statement

    Jackson Lee, Hon. Sheila, a Representative in Congress From the State of Texas: Prepared statement

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    Norton, Hon. Eleanor Holmes, a Delegate in Congress From the District of Columbia: Prepared statement

    Poling, Nora: Prepared statement

    Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement

APPENDIX
    Material submitted for the record

CT-43A FEDERAL EMPLOYEE SETTLEMENT ACT AND FEDERAL TORT CLAIMS ARISING OUTSIDE THE UNITED STATES

THURSDAY, JUNE 8, 2000

House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 10:45 a.m., in Room 2226, Rayburn House Office Building, Hon. Lamar S. Smith [chairman of the subcommittee] presiding.

    Present: Representatives Lamar S. Smith, Sheila Jackson Lee, Howard Berman, Zoe Lofgren, and Barney Frank.

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    Staff present: Cindy Blackston, professional staff; Kelly Dixon, clerk; Leon Buck, minority counsel; and Nolan Rappaport, minority counsel.

OPENING STATEMENT OF CHAIRMAN SMITH

    Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.

    I am going to recognize myself, other members for opening statements if they have them, and then we will proceed to hear from our first witnesses.

    Today the subcommittee is conducting a hearing on two bills, H.R. 3295, introduced by our colleague, Congressman Farr, and H.R. 1371, introduced by our colleague, Delegate Norton.

    These two bills, which take different approaches, seek to provide additional remedies, beyond those provided in current law, to the survivors of Federal Government employees who were victims of the tragic crash in Croatia on April 3, 1996, of an Air Force aircraft—Secretary of Commerce Ron Brown and 34 other individuals.

    [The bills, H.R. 3295 and H.R. 1371 follows:]

106TH CONGRESS

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    1ST SESSION
  H. R. 3295
To provide for the payment of compensation to the families of the Federal employees who were killed in the crash of a United States Air Force CT–43A aircraft on April 3, 1996, near Dubrovnik, Croatia, carrying Secretary of Commerce Ronald H. Brown and 34 others.

IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 10, 1999
Mr. FARR of California (for himself, Mr. GEKAS, Mr. FORBES, Mr. FRANK of Massachusetts, Ms. NORTON, Mr. SHAYS, Ms. SLAUGHTER, Mr. PAYNE, Mr. GILCHREST, Mr. KENNEDY of Rhode Island, Mr. RAHALL, Mr. GILMAN, Mrs. MEEK of Florida, Mr. THOMPSON of California, Ms. PELOSI, Mr. KING, Mr. WYNN, Mrs. CHRISTENSEN, Ms. EDDIE BERNICE JOHNSON of Texas, Ms. MILLENDER-MCDONALD, Mrs. MALONEY of New York, Mr. RANGEL, Ms. JACKSON-LEE of Texas, Mr. WAXMAN, Mr. JACKSON of Illinois, Mr. FALEOMAVAEGA, Mr. STARK, Ms. WATERS, Mr. TIERNEY, Mr. LEWIS of Georgia, Mr. ALLEN, Mr. SISISKY, and Mr. MCDERMOTT) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL
To provide for the payment of compensation to the families of the Federal employees who were killed in the crash of a United States Air Force CT–43A aircraft on April 3, 1996, near Dubrovnik, Croatia, carrying Secretary of Commerce Ronald H. Brown and 34 others.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

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SECTION 1. SHORT TITLE.
    This Act may be cited as the ''CT–43A Federal Employee Settlement Act''.
SEC. 2. FINDINGS.
    Congress finds the following:
    (1) On April 3, 1996, Secretary of Commerce Ronald H. Brown embarked on a mission to Croatia to build trade ties and provide economic assistance to the former Yugoslavia as part of the United States commitment to bring lasting peace to Bosnia-Herzegovina and Croatia. Accompanying Secretary Brown were numerous United States Government officials and high-ranking representatives of United States infrastructure and economic development interests.
    (2) The Department of Defense provided Secretary Brown and his party a United States Air Force CT–43A aircraft and crew for transport purposes.
    (3) On April 3, 1996, the aircraft carrying Secretary Brown and his party crashed into a mountainside near Dubrovnik, Croatia, while attempting an instrument approach into the Cilipi Airport (serving Dubrovnik).
    (4) The crash resulted in the death of all 35 persons aboard, as well as the loss of the aircraft and personal effects of the crew and passengers.
    (5) The Air Force investigation into the crash concluded that the accident was caused by a failure of command, aircrew error, and an improperly designed instrument approach procedure.
SEC. 3. COMPENSATION FOR FAMILIES OF FEDERAL CIVILIAN EMPLOYEES.
    (a) REQUIREMENT TO MAKE PAYMENTS.—The Secretary of the Air Force shall pay, from amounts available to the Air Force for the payment of claims, the amount of $2,000,000 to the specified beneficiary of each of the 14 Federal civilian officers and employees killed in the crash of a United States Air Force CT–43A aircraft on April 3, 1996, near Dubrovnik, Croatia.

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    (b) DEADLINE.—The Secretary shall make each payment required by subsection (a) not later than 90 days after the date of the enactment of this Act.
    (c) SPECIFIED BENEFICIARIES.—For the purposes of this section, the specified beneficiary of a Federal civilian officer or employee described in subsection (a) is determined in the manner specified in section 5582(b) of title 5, United States Code. If in the case of any such officer or employee there is more than one such beneficiary, the payment required by subsection (a) shall be paid in equal shares to those beneficiaries.
    (d) RELATIONSHIP TO OTHER PAYMENTS.—The amount payable under this section with respect to the death of a Federal civilian officer or employee shall be reduced by any amount (other than a statutory death gratuity for burial benefits) previously determined to be payable by the United States (under section 127 or chapter 163 of title 10, United States Code, or any other provision of law for administrative settlement of claims) by reason of the death of that officer or employee .
    (e) FULL SETTLEMENT OF CLAIMS.—Acceptance by a specified beneficiary of a payment under this section constitutes full settlement of all claims by that person against the United States arising from the death of the officer or employee with respect to whom the payment is made.
    (f) CONSTRUCTION.—The payment of an amount under this section may not be considered to constitute a statement of legal liability on the part of the United States or otherwise as evidence of any material fact in any judicial proceeding or investigation arising from the accident described in subsection (a).
    (g) LIMITATION ON ATTORNEY FEES.—Notwithstanding any contract, no representative of a beneficiary may receive more than 10 percent of a payment made under this section for services rendered in connection with the beneficiary's claim for that payment. Any person who violates this subsection shall be guilty of an infraction and shall be subject to a fine in the amount provided in title 18, United States Code.

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106TH CONGRESS
    1ST SESSION
  H. R. 1371
To amend the Federal tort claims provisions of title 28, United States Code, to repeal the exception for claims arising outside the United States, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES
APRIL 12, 1999
Ms. NORTON (for herself, Ms. CARSON, Mr. CONYERS, Mr. FARR of California, Mr. FORBES, Mr. FROST, Mr. FRANK of Massachusetts, Mr. GEKAS, Ms. JACKSON-LEE of Texas, Mr. KING, Mr. KENNEDY of Rhode Island, Mrs. LOWEY, Mrs. MEEK of Florida, Mr. PAYNE, Ms. PELOSI, Mr. SHAYS, Mr. STARK, and Mr. WYNN) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL
To amend the Federal tort claims provisions of title 28, United States Code, to repeal the exception for claims arising outside the United States, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. CLAIMS ARISING OUTSIDE THE UNITED STATES.
    (a) EXCEPTION.—Section 2680 of title 28, United States Code, is amended by striking subsection (k).
    (b) APPLICABLE LAW.—In an action brought under section 1346(b) of title 28, United States Code, for a claim arising in a foreign country, the court shall apply the law of the domicile of the plaintiff in such claim.

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SEC. 2. CLAIMS FOR GROSS NEGLIGENCE.
    Sections 2674 of title 28, United States Code, is amended by adding at the end the following:
    ''Notwithstanding section 8116(c) of title 5, United States Code, an officer or employee of the United States may bring an action under this chapter against the United States which is based on the gross negligence of an officer or employee of the United States.''.
SEC. 3. EFFECTIVE DATE.
    The amendments made by sections 1 and 2 shall apply with respect to actions which occurred on or after April 3, 1996.

    Mr. SMITH. On April 3, 1996, the CT–43A aircraft carrying the Secretary of Commerce and 34 other individuals on a mission to build trade ties and provide economic assistance to the former Yugoslavia crashed in Dubrovnik, Croatia.

    There were 6 Air Force crewmen, 14 Federal civilian employees, 13 U.S. businessmen, and 2 Croatian nationals aboard.

    A military investigation of the crash concluded that the accident was caused by: (1) failure of command; (2) air crew error; and (3) improperly designed instrument approach procedures.

    The families of the government employees on the plane are restricted to receiving survivor benefits based on the Federal Employee Compensation Act and the remedies available to the survivors of the Air Force crewmen are restricted to military statutory death benefits.

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    In settlements with the families of private citizens, the settlement amounts from the government have been in the millions. In settlements with the families of foreign citizens, the settlement amounts from the government have been approximately $2 million.

    This hearing will explore any disparity between the benefits provided to the survivors of government employees and the survivors of the other individuals aboard the CT–43A aircraft.

    We will hear testimony from the sponsors of the bills, the Department of Justice, and four survivors of the Federal Government employees killed in the crash.

    All of us acknowledge the tragedy that has struck the families of those lost in this incident. Today, we will address whether the current system in place to compensate Federal employee survivor families is adequate and appropriate in these situations.

    I further want to add that it is both interesting and instructive that the Defense Department has refused to provide a witness at today's hearing. That is disappointing because we would like to know what they have to say as to their rationale. My hunch is that they failed to accept our invitation simply because they thought it would put them in an uncomfortable position. That is no justification for not being here.

    Second, I am disappointed that the Department of Justice written testimony did not arrive until minutes before the hearing today. That I also suspect is as a result of some hesitation to testify or not knowing what to testify to until they heard from the White House. I would have hoped that the Department of Justice would have had objective testimony with a basis of integrity underneath it, rather than waiting to see what they were told to say by the White House. So that is disappointing as well, although we still appreciate the Department of Justice having a witness here.

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    That having been said, I will recognize the gentlewoman from Texas, the ranking member, for her comments.

    [The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

    Today the Subcommittee is conducting a hearing on two bills, H.R. 3295, introduced by our colleague, Congressman Farr, and H.R. 1371, introduced by our colleague, Delegate Norton.

    These two bills, which take different approaches, seek to provide additional remedies beyond those provided in current law to the survivors of Federal government employees who were victims of the tragic April 3, 1996 crash in Croatia of an Air Force aircraft carrying Secretary of Commerce Ron Brown and 34 other individuals.

    On April 3, 1996, the CT–43A aircraft carrying the Secretary of Commerce and 34 other individuals on a mission to build trade ties and provide economic assistance to the former Yugoslavia crashed in Dubrovnik, Croatia. There were 6 Air Force crewmen, 14 Federal civilian employees, 13 U.S. businessmen, and 2 Croatian nationals aboard.

    A military investigation of the crash concluded that the accident was caused by: 1) failure of command; 2) aircrew error; and 3) improperly designed instrument approach procedures.

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    The families of the government employees on the plane are restricted to receiving survivor benefits based on the Federal Employee Compensation Act and the remedies available to the survivors of the Air Force crewmen are restricted to military statutory death benefits.

    In settlements with the families of private citizens, the settlement amounts from the government have been in the millions. In settlements with the families of foreign citizens, the settlement amounts from the government have been approximately $2 million.

    This hearing will explore any disparity between the benefits provided to the survivors of government employees and the survivors of the other individuals aboard the CT–43A aircraft.

    We will hear testimony from the sponsors of the bills, the Department of Justice, and 4 survivors of the Federal government employees killed in the crash.

    All of us acknowledge the tragedy that has struck the families of those lost in this incident. Today, we will address whether the current system in place to compensate Federal employee survivor families is adequate and appropriate in these situations.

    Ms. JACKSON LEE. Thank you, Mr. Chairman. This is a day that many of us have long been waiting for, and I am very appreciative to my Chairman, Lamar Smith, for agreeing to hold this very important hearing.

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    Might I also echo my doubtful appreciation for the presence of the Department of Justice and concern with the delay; but, more importantly, the lack of presence of the Department of Defense. This is an important question. This is a question about American citizens. This is a question about citizens who were doing nothing wrong. They were serving their country, their Nation. They were doing what we asked them to do.

    Why should our own Federal agencies be in doubt to be able to speak clearly about this issue? If they simply looked at the facts and the right thing to do, they might have been able to say if we are unable to do this by present law, then we would encourage a change in the law.

    So I would like to thank both Congressman Sam Farr and Congresswoman Eleanor Holmes Norton for their leadership on this issue. It would be helpful if our agencies would simply assess the legislative approaches and be able to provide advice, how can we work this problem out.

    I do want to commend Congressman Farr as his constituents, the Darlings, lost their son in the fatal aircraft. I would like to thank Kenneth and Maureen Dobert and Mr. Darling and Nora Poling for coming forward to testify today. I know that the pain still exists.

    I will do everything that I can to make sure that you are compensated in a fair and equitable manner. That is what this hearing is about. On April 3, 1996, 35 people were killed in the crash of the Air Force CT–43A in Croatia. In addition to Secretary of Commerce Ron Brown, 13 other government employees were killed. Many of the government employees were bright young public servants. Plainly speaking, they were our public servants.

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    Mr. Chairman, for the families that have come before us today, this has been a 3- 1/2-year battle. They lost loved ones and some are under serious financial stress as a result of the crash. H.R. 3295 would grant fair and just financial relief. This is about equity and about fairness.

    Let me say as we handle the tragedies in Belgrade with the Chinese Embassy, our government was quick to pay those families who were not American citizens. We know that the act was a wrongful act, and we moved quickly to assist those families of those who lost their lives.

    There needs to be fairness and equity because the 13 families of victims from the private sector have received up to $14 million per family. The bar governed by the Federal Employee Settlement Act limits the government employees to $10,000 for single persons without dependents and a maximum of 75 percent of last salary as the maximum for those with dependents, regardless of how egregious the violations of regulations, direct orders and common safety happen to have been.

    There was negligence here as well. The Air Force investigation concluded that the accident was caused by a failure of command, air crew error, and improperly designed instrument approach procedure.

    H.R. 3295 seeks to compensate the families of the Federal employees who were killed in Croatia due to the United States Government's negligence. H.R. 1371 seeks to provide relief to victims, particularly when the United States has been found to be grossly negligent. These two bills seek to provide fairness and equity. The intent of Mr. Farr's bill is to end the disparity of treatment that nongovernment civilians receive for government employees.

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    Finally, Mr. Chairman, it doesn't make any sense that foreign nationals are fully compensated by the negligence of the U.S. Government but because of these restrictions in our laws, U.S. citizens are not fully compensated.

    On April 19, 1994, 15 Americans, 14 military personnel, and 1 civilian and 11 foreign nationals were killed when their Army Black Hawk helicopters were shot out of the sky. After this incident the Department of Defense made payments to 11 foreign nationals, but it took congressional action in the form of H.R. 456 to compensate the American families for the loss of their loved ones.

    On February 3, 1998, a U.S. Marine Corps A–6 aircraft severed a cable of the ski gondola in Italy, killing 20 people. The U.S. Government also compensated the families of the foreign nationals who were killed as a result of this accident.

    Certainly the crash here is warranting settlements with the families of government employees. Settlements with the families of private citizens amounted to sums between $3 million and $16 million. In settlements with families of foreign citizens, the settlements have been approximately $2 million. These bills and this hearing address the issue of fairness, justice and equity. I appeal to the Department of Defense and the Department of Justice to join us in changing these laws to provide this fairness and to bridge this vast disparity that exists between the benefits provided to the survivors of government employees and the survivors of the other individuals aboard the CT–43A aircraft. It is simply a question of doing what is right.

    Mr. Chairman, I would also like to submit into the record a statement of Secretary Daley's staff dated June 8, 2000. ''I want to express our deep support for H.R. 3295 before the subcommittee. I know many of the families represented in the room, and appreciate the difficulties they have been through these past 4 years. Nothing can compensate for the loss of their loved ones, but this legislation would assist them in carrying on.''

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    Mr. SMITH. Without objection, so ordered.

PREPARED STATEMENT OF LINDA J. BILMES, CHIEF FINANCIAL OFFICER AND ASSISTANT SECRETARY FOR ADMINISTRATION

    ''I want to express our deep support for H.R. 3295 before the Subcommittee. I know many of the families represented in the room and appreciate the difficulties they have been through these past four years. Nothing can compensate for the loss of their loved ones, but this legislation will assist them in carrying on.''

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Ms. Jackson Lee.

    [The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Thank-you Mr. Chairman. This is a day that many of us have long been waiting for, and I am very appreciative to my Chairman, Lamar Smith for agreeing to hold this very important hearing. I would also like to thank both Congressman Sam Farr and Congresswoman Eleanor Holmes Norton for their leadership on this issue. I do want to especially commend Congressman Farr, as his constituents, Mr. and Mrs. Darrell Darling lost a son aboard the fatal aircraft in which his bill addresses. I would also like to thank the families, Kenneth and Maureen Dobert, Mr. and Mrs. Darling, and Ms. Nora Poling for being courageous and coming forward to testify today. I will do everything I can to make sure that you are compensated in a fair and equitable manner. That is really what this hearing is about.

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    On April 3, 1996, thirty-five people were killed in the crash of the Air Force CT–43A in Dubrovnik, Croatia. In addition to Commerce Secretary Ron Brown, 13 other government employees were killed. Many of the government employees were bright, young public servants.

    Mr. Chairman, for the families who have come before us today this has been a three and a half year battle. They lost loved ones in this incident, and as a result some are under serious financial stress as a direct result from the crash. H.R. 3295 would grant financial relief which is not exorbitant but is fair and just and conforms with precedents. This is about equity and fairness.

    There needs to be fairness and equity because the 13 families of victims from the private sector have received up to $14 Million per family. The bar governed by the Federal Employee Settlement Act (FECA), limits the government employees to $10,000 for single persons without dependents and a maximum of 75% of last salary as the maximum for those with dependents, regardless of how egregious the violations of regulations, direct orders, and common safety. There was negligence here as well. The Air Force Investigation into the crash concluded that the accident was caused by a failure of command, aircrew error, and improperly designed instrument approach procedure. H.R. 3295 seeks to compensate the families of the Federal employees who were killed in Croatia due to the United States government's negligence. H.R. 1371 seeks to provide relief to victims particularly when the United States has found to be grossly negligent. These two bills seek to provide fairness and equity. The intent of Mr. Farr's bill is to end the disparity of treatment that non-government civilians receive from civilian government employees.

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    Finally Mr. Chairman, it doesn't make any sense that foreign nationals are fully compensated by the negligence of the U.S. government, but because of these restrictions in our laws U.S. citizens are not fully compensated. On April 19, 1994, 15 Americans, 14 military personnel and 1 civilian, and 11 foreign nationals were killed when their Army Black Hawk helicopters were shot out of the sky by two Air Force F–15s. After this incident, the Department of Defense made payments to the 11 foreign nationals, but it took congressional action in the form of H.R. 456 to compensate the American families for the loss of their loved ones.

    On February 3, 1998, a U.S. Marine Corps A–6 aircraft severed the cable of a ski gondola near Cavalese, Italy, killing 20 people. The U.S. government also compensated the families of the foreign nationals who were killed as a result of this incident.

    On May 7, 1999, the Chinese Embassy in Belgrade was hit by five laser-guided bombs dropped by U.S. planes during a NATO bombing campaign. Three embassy employees were killed and 27 were wounded in the NATO attack. The United States agreed to make a voluntary payment of $4.5 million to the families of the 3 killed and to the 27 injured as a result of the NATO bombing out of DoD discretionary appropriated funds.

    In the crash in Croatia settlements with the families of private citizens with the Federal government amount to sums between $3 million and $16 million. In settlements with the families of foreign citizens, the settlement amounts from the government have been approximately $2 million.

    These bills and this hearing address the issue of fairness . . . justice . . . and equity. I appeal to the Department of Defense and the Department of Justice to join us in changing these laws to provide this fairness and to bridge this vast disparity that exists between the benefits provided to the survivors of government employees and the survivors of the other individuals aboard the CT–43A aircraft.

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    Thank-you Mr. Chairman.

    Mr. SMITH. We will go to the first panel, the Honorable Sam Farr and the Honorable Eleanor Holmes Norton.

STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. FARR. Thank you very much. I would like for the record to submit the testimony of my colleague, Michael Forbes, who also wanted to be on the dais.

    [The prepared statement of Mr. Forbes follows:]

PREPARED STATEMENT OF HON. MICHAEL FORBES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Mr. Chairman and members of the subcommittee, I want to thank you for holding these hearings regarding the ''CT–43A Federal Employee Settlement Act.''

    I have come to know Ken and Maureen Dobert very well since the accident, and we have become good friends. I am truly glad that we have become such good friends, but I wish we had met under different circumstances. On April 3, 1996, Ken and Maureen lost their only daughter, Gail, when the US Air Force's CT–43A aircraft crashed into St. John's Hill while attempting to land at Cilipi Airport killing all thirty-five passengers. Soon after, I visited with the Doberts to offer my condolences and help the family in any way possible. The Dobert family was devastated by this tragedy. As a parent of three, I empathized, but could not truly understand the magnitude of their pain. The untimely loss of a child is a pain that no parent should have to bear.

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    Gail dedicated her life to serving others. On April 3, Gail and 34 others, including Secretary of Commerce, Ron Brown, were part of a trade mission to Croatia to improve the lives of the Croatian people after war ravaged through their communities. Fourteen of the 35 passengers were government employees, employees who devoted their lives to this country. These men and women deserve our praise, and their families deserve justice.

    But this has not the case. Since the accident, the Air Force investigation found that there was a deliberate violation in the chain of command, that there were numerous safety deficiencies on the airplane, and that overt errors were made by the crew. The families of the private citizens on the aircraft were awarded settlements from the Air Force, but the families of the government employees are forbidden to seek such restitution or to present their case before a court of law. There is documented wrong-doing and the military has provided restitution to the families of private citizens but has told my friends, the Doberts and the other families, that there is nothing that can be done. Where is the justice?

    ''The CT–43A Federal Employment Settlement Act'' (H.R. 3295) would give the government the opportunity to take responsibility for the pain and suffering that was caused by this accident and offer the deceased federal employees' families the same settlement that was offered to the private citizens' families. H.R. 3295 provides each family with $2 million without admission of fault by the military or the U.S. government. It is my sincere hope that my colleagues in this Subcommittee will give these families the justice that they deserve and give the rest of our colleagues the opportunity to debate and vote on this legislation.

    Mr. FARR. I think in both of your opening statements you outlined the problem. Let me put it in a little different context. If you, Mr. Chairman, were to decide that we ought to go on a fact-finding CODEL and we gathered the people in this room to go with us, including the staff of this committee, it would make all of the difference in the world whether we went down to Dulles and got on a commercial airline or went out to Andrews Air Force Base and got on a military plane. If you got on a commercial plane and something happened, you would have standing to do something if there was negligence. If you get on the Air Force plane, you do not.

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    It has taken a long time to get to this room. We have before us something that is broken that needs fixing. We as lawmakers are the only ones that can fix it. What needs fixing is the inequity in the way the compensation law applies to Federal employees, like our own staff, whether married or not married.

    And because of Federal law, Federal employees cannot seek redress and compensation like they could have if they were civilian or nonfederal employees. This bill addresses that inequity and rights that wrong.

    I would like to submit for the record a copy of the Air Force report on the CT–43 crash.

    Mr. SMITH. Without objection. That as well as Mr. Forbes' testimony will be made a part of the record.

    [The information referred to is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]

    Mr. FARR. Thank you, Mr. Chairman.

    The culmination of errors in the report details that we need to right these wrongs. But there has been no redress for the Federal employees on the plane, and that is why my bill was introduced. I hope that you will act on it favorably.

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    A good number of members of this subcommittee are cosponsors of this bill. This bill provides a one-time lump sum payment to the families of the victims of CT–43. The bill is narrowly drawn to cover only the Federal employees on the plane. Current law provides them only benefits within the scope of the Federal Employees Compensation Act. Even under situations where there may be clear cause, these persons are barred from the court system to argue their case. Then, where will they seek justice? They seek it here and I think we owe it to them to listen to them.

    The bill that our colleague, Representative Eleanor Norton, offers would change the tort laws and let people seek their day in court, and I support that bill. I think there is a way to define gross negligence, so people can be certified to have standing in court.

    But barring that bill or my bill, these people have no other remedy, no other restitution for loss of life. The bottom line of this bill is fairness and justice. The government employees work daily to make our country function in every respect. These people need to be valued and they need to be treated justly. Where is there justice if the United States can settle the claims of those killed in Cavalese, Italy, but not for the families of CT–43? Where is the justice if the United States can settle the claims of those killed in the accidental bombing of the Chinese Embassy in Belgrade, but not for the families of the victims of CT–43?

    Did you know that the National Transportation Safety Board is supposed to receive an additional $24.7 million for the investigation into the Egypt 990 and the Alaskan 226 air disasters? The investigation of these private air disasters will cost about the same as I propose to compensate the CT–43A families, and the United States is not even a party to these unfortunate accidents, but it is a party to the CT–43 mishap.

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    If the United States can spare $24.7 million to investigate a private carrier accident, where is the justice in denying a similar amount to victims in a government carrier accident?

    Abraham Lincoln reminded us that this is a country of the people, for the people, and by the people. We are elected representatives. We receive our power from the people. Without their empowerment to work for them, we are nothing. They are the true government. We are simply their tools.

    My bill, H.R. 3295, employs this public power by acknowledging that the government values its people. It is not a complicated bill and may not answer all of the questions left behind on a mountainside in Croatia, but it sends a message that the United States takes care of its own.

    Again, Mr. Chairman, I am gratified that the committee has seen fit to hold this hearing today and listen to the needs of these people. It is the right thing to do, and I hope that the committee will see fit to move this legislation. The government employees on CT–43 should not be forgotten by the government for whom they toiled. Thank you very much.

    Mr. SMITH. Thank you Mr. Farr.

    [The prepared statement of Mr. Farr follows:]

PREPARED STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

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    Chairman Smith, Congresswoman Jackson Lee, members of the committee, I appreciate the opportunity to testify today on behalf of my bill, HR 3295.

    First, however, I want to let you know how hard working, dedicated and, yes, single-minded, the families of the CT43 victims have been in educating me and other members to the circumstances surrounding this tragedy. My constituents, Karen and Darrell Darling, are the parents of Adam Darling who perished in the Ron Brown crash. Karen and Darrell have been long time friends of mine and I shared their grief when we learned of the airplane crash. With the family I met the remains of young Adam at the airport and sat in the church when he was entrusted to his God for the last time.

    Since then Karen and Darrell and the other families of CT43, notably Ken and Maureen Dobert, Nora Polling, Luther Jackson, Dierdre English and a dozen others have lent their voices and their support to seeing justice done in this matter. It has been a four year journey but never in those four years have I seen any of them waver in their commitment to their lost family members. It has been rewarding and inspirational to watch them work and to work with them. I consider it a high honor that they have allowed me to assist them in this legislative endeavor.

    As you know, my bill was introduced to serve one purpose: to provide the families of the victims on the Ron Brown mission a one-time, lump sum payment as compensation for the loss of life in that plane crash. The bill's provisions are limited to the civilian federal employees on that plane; no more than $2 million could be paid out for the death of any single person.

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    It was necessary to introduce this legislation because these families had no other recourse. This body, the United States Congress, is their last hope for justice. Whether they see justice or not . . . lies with you.

    Imagine this: you lose a loved one. In the ensuing investigation, you learn that persons involved disobeyed orders, ignored standard protocol, did not use normal safety equipment or follow standard safety procedures, and used inaccurate information on which to base their decisions in the first place. Finally, after learning all this you are told it was all a terrible accident but there is nothing to be done about it.

    The scenario I've just painted is not so far from the reality facing the families of civilian federal employees on the Ron Brown plane. Because the Ron Brown mission was government sponsored and occurred on a government aircraft, and because the crash happened on foreign soil, the all the victims on that plane were caught in a tremendous catch-22 that prevented their grieving families from seeking restitution for their loss.

    However, after negotiations, families of deceased private citizens were awarded settlements from the Air Force.

    Families of deceased federal employees were not.

    Federal employees' survivors are not entitled to seek such restitution because the law provides only for those benefits within the scope of the Federal Employees Compensation Act (FECA). Even under situations where there may be clear cause, these persons are barred from the court system to argue their case.

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    Frankly, I object to any testimony this committee might hear or receive that would attempt to paint a picture of ''the law was fulfilled'' and these victims got everything they were allowed under the law. When a law is unreasonably restrictive it is not fair. We are legislators here; we can change the law. That's why Ms. Norton and I have introduced legislation.

    The bill before the committee today offered by my good friend from the District of Columbia, Ms. Eleanor Holmes Norton, would directly address the tort claims prohibition. I am proud to be a cosponsor of her bill and would suggest to the committee that, if not Ms. Norton's bill, there needs to be some avenue for persons to use when there has been gross negligence on the part of the government. It isn't fair to simply deny people an opportunity to right wrongs just because one of the parties is government.

    In fact, it is because there is no such avenue that I introduced HR 3295. Without recourse to the courts, there is no opportunity to recover lost earning power, to recover lost potential, to recover a future denied. FECA benefits cannot begin to cover the losses under extraordinary circumstances such as those experienced by the victims on CT–43. The Air Force did try to make up for those losses to the private citizens on the airplane; the federal employees did not have that latitude.

    In writing my bill, HR 3295, I considered these elements:

does this government appreciate the sacrifice its own employees make to advance this country's agenda?

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what is the relativity of life and why are some persons on that plane considered ''different'' than the others?

are we setting precedent by proposing compensation for these people?

    In answering all these questions, I come up with the same answer: people need to be valued and they need to be treated justly.

    If we want the public to respect and appreciate government, then government must respect and appreciate those who make it work. To deny the CT43 families the opportunity for redress is to deny the contribution their loved ones made daily to creating an America of which we can be proud.

    If some of the people on that downed plane are worth compensation, then why not all? What difference does it make that one person worked in public service and another was privately employed? Aren't we guilty of the worst discrimination if we say one person on that plane was better than another? Isn't it most unfair that we can be indifferent to one person's death but outraged over another? Yet, under current laws and rules, that is the position we are forced to assume.

    If the United States can provide compensation for the victims of the Calavese (Italy) gondola accident, and the United States can provide compensation for the victims of the Chinese Embassy in Belgrade that we accidentally bombed, and the United States is willing to pay the victims of the Black Hawk incident over Saudi Arabia, then why shouldn't the United States provide compensation for the victims of the CT43 crash? In each instance, errors were made. Military protocols were ignored. Safety procedures were not followed. But we pay off in some and not in others? Where is the justice in that? When does this government finally say, we value our people?

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    The legislation I offer here today begins to answer some of these questions. It does not assess blame. It does not point fingers. But it does send a message that the United States takes care of its own.

    Abraham Lincoln reminded us that this is a country ''of the people, for the people and by the people.'' We as elected representatives receive our power from the people; without their empowerment to work for them, we are nothing. They are the true government; we simply are their tools.

    The people of CT43 are part of that. For us to deny to them the right to petition their government—a government which they empower—is to deny them the basic American tenet to determine the kind of government the people want to have. The people who died on that plane, who made it possible for us to do what we do, deserve more than bronze memorials and tearful commendations. They deserve us to take care of the ones they left behind in grateful recognition of the value they added to making America great.

    I am pleased and gratified that the Committee has seen fit to hold this hearing today and listen to the needs of these people. It is the right thing to do. I only hope that the Committee will also see fit to move this legislation. The government employees on CT–43 should not be forgotten by the government for whom they toiled. Let's pass this legislation and affirm their lives so the people on CT–43 will not have died in vain.

    Mr. SMITH. Ms. Norton.

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STATEMENT OF HON. ELEANOR HOMES NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Ms. NORTON. Thank you very much, Mr. Chairman. I know I speak for the families when I express my own deep appreciation and theirs, that you have afforded the first hearing that they have been able to receive. I thank, as well, the ranking member, Ms. Jackson Lee, for helping to secure this hearing. I support not only my bill, the Ron Brown Tort Equality Act, I support the bill of my friend and colleague, Representative Sam Farr, from whom you just heard. I would like to summarize my testimony and ask that my entire testimony be put in the record.

    The families, of course, have yet to recover from what will remain a singular American tragedy. Perhaps the only thing more difficult to comprehend is that their own government would provide no remedy for them, while remedies have been forthcoming for foreign nationals in similar situations.

    Mr. Chairman, the gross negligence is conceded. I have great respect for the Air Force Accident Investigation Board and the honesty of its report, where it indicated that this accident resulted from three independent causes, and I quote their report, ''any one of which, had it not existed, would have prevented the accident.'' You can imagine how a court would view that testimony.

    That is why I thought that these families deserve the right to submit this evidence to the court and to make their case. In my own judgment, they have. Had they been civilians, they would have a strong case for punitive damages. Instead, some of them received as little as $10,000. And you have been the first to afford them a hearing on their claims.

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    I have been working with them ever since this accident, and introduced the Ron Brown Tort Equality Act a year after the accident. More of the residents came from the District of Columbia than from any other State, but this is a notably bipartisan bill because the victims came from 15 States and the District of Columbia.

    Mr. Chairman, I am not challenging the theory behind or the wisdom behind the Federal Employee Compensation Act. I understand the theory and I agree with the theory. My view is not that government employees ought to have the right to sue for negligence. My bill would open a very narrow window. When the families of the employees could show, and the burden would be theirs, that there has been gross negligence, they would be entitled not to punitive damages, but only to compensatory damages. I think we can all recognize that very few circumstances or instances would qualify under my bill.

    I believe that this accident, and accidents since, indicate that there is a structural defect in our law and that we should correct that defect.

    However, when I see how these families have come to me and to Representative Farr each and every year to try to get redress, and seeing no action on the Ron Brown Tort Equality Act, I believe that, minimally, we must provide some compensation to these families of the kind we have now provided to other families, some of them not even American citizens. I don't pretend that if they got a $2 million award that that would be complete justice. I do think that there would be some beginning of equality in justice because that amount is simply taken from the amount others have gotten since.

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    Mr. Chairman, what we are seeking here is nothing less than equal treatment. These families now see that it is possible to come to Congress and to get some compensation. It has not been possible for them to get some compensation even though the accident where they lost family members, we now know undeniably, could have been prevented and there has been serious negligence which has been documented by the government, itself. We think that it should be unthinkable to continue to award compensation in similar circumstances to other families while these 14 families remain without compensation from our government. It has been 4 years since the tragedy. We think that this is the year to close the book on the tragic crash over which the country mourned 4 years ago. Thank you.

    Mr. SMITH. Thank you, Ms. Norton.

    [The prepared statement of Ms. Norton follows:]

PREPARED STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    I very much appreciate the opportunity for a hearing on my bill, H.R. 1371, the Ron Brown Tort Equality Act, and on Rep. Sam Farr's bill, H.R. 3295, the CT–43A Federal Employee Settlement Act, both of which I support. The tragically needless crash of the plane carrying Commerce Secretary Ron Brown and 34 others on April 3, 1996, in Croatia will be remembered as a singular American tragedy. It is still hard to believe that 33 Americans and two Croatians were killed in a crash that our government could have prevented.

    The Air Force Accident Investigation Board report was honest and forthcoming. It concluded that the accident resulted from three independent causes, ''any one of which had it not existed would have prevented the accident.'' Had this accident involved an ordinary civilian domestic flight, the families would have had a strong case for punitive damages. Yet, despite the negligence that the government was compelled to concede, the families of the federal employees who died in the crash could collect only very limited amounts under the Federal Employee Compensation Act. In those cases where the victims did not leave behind a spouse or other dependent, compensation to the families was limited to a mere $10,000 each, although the victims were at the height or at the beginning of often demonstrably brilliant careers.

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    That is why I first introduced the Ron Brown Tort Equality Act in April, 1997, a year after the tragic accident. It was a notably bipartisan bill in no small part because the victims originated in 15 states and the District of Columbia. The Ron Brown Tort Equality Act would allow federal civilian employees, who normally have no right to sue the government for negligence, to bring suit in very limited circumstances. (The civilians who were not government employees have already received compensation under the Military Claims Act.) The proposed act allows a case to be filed only for gross negligence by federal officers or employees and only for compensatory, not punitive, damages. Because there will be few instances where gross negligence can be shown, my bill opens only a very narrow window.

    The Ron Brown Tort Equality Act offers three advantages: it helps recover damages for a loss that can never be repaid; its remedy is significant enough to afford a deterrent effect, thus helping to assure that such negligence does not occur in the future; and it allows families to pursue their remedies just as other Americans do.

    However, last year, with no action on the Ron Brown Tort Equality Act in sight, I joined Rep. Farr as an original cosponsor of H.R. 3295, the CT–43A Federal Employee Settlement Act. It would provide up to $2 million in compensation for each of the families of the tragic accident. Like the families, I support the Farr bill because it would close the books on the accident and would offer at least some of the increased compensation the families deserve. At the same time, the prescribed amount would not render complete justice and would not be a change in law that would help assure that there would not be similar negligence in the future. Yet, surely the Farr bill is an acceptable solution under the circumstances and what is minimally required.

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    The United States on numerous occasions has paid for the loss of life due to military related mishaps. Most recently, the government provided compensation to the families of the victims of the Cavalese, Italy accident in which an A–6 aircraft clipped a gondola cable, causing the death of the passengers of the gondola. The amount of compensation awarded was $2 million per victim, the identical amount stipulated in Rep. Farr's bill. The awarding of compensation to the families of the victims of the CT–43A crash in Croatia is thus not only well grounded in precedent. After the Ron Brown aircraft tragedy where undeniable, preventable, and serious negligence has been documented, it should be unthinkable to award damages in similar circumstances without also compensating the fourteen families of the civilian federal employees. It has been four years since that tragedy. The time to do more and to do right is long overdue.

    Mr. SMITH. I have a couple of questions. Mr. Farr, what is the basis for the $2 million figure? I thought possibly it might be the settlement amount for the gondola accident in Italy. I wanted to hear if you have a basis.

    Mr. FARR. That is a question I asked when trying to figure out what it should be. The Department of Transportation commissioned an actuarial review of the average worth of a life lost in an airline accident. That set the worth at $2.7 million. The compensation level in my bill is set below that, at $2 million.

    I might add since the accident, as Ms. Norton pointed out, we have settled the case in Italy, which occurred after the accident, at $2 million per victim. We settled the Chinese bombing at $4.5 million per victim. The Black Hawk helicopter incident is pending payment. The government has announced that it is floating settlement compensation scenarios for the Paducah, Kentucky nuclear facility workers who were exposed to radiation, and the Department of Interior and BLM have announced plans to make restitution to the families burned out by the recent Los Alamos fire. So the amount in this case is what, as I understand, is what has been determined to be the value of a loss of life on an airline accident and what usually—insurance companies will settle for out of court.

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    Mr. SMITH. Thank you for that explanation.

    One last question. Under the Federal Employees Compensation Act, five of the individuals who were killed have left spouses who over their lifetimes will probably get $2 million or so, and should we take that into consideration or not?

    Mr. FARR. Will get $2 million?

    Mr. SMITH. They will get 45 percent of their spouse's salary over an average of 30 years, which total a little over $2 million. Is that taken into consideration, or how do you feel about that?

    Mr. FARR. I think those families ought to be good witnesses on that issue and to respond to that.

    Mr. SMITH. Thank you.

    Ms. Norton, my only question for you is whether we would be setting a precedent that would allow other individuals to sue the government when there was gross negligence; for instance, for personal injury or some other claim against the government that did not result in death as in these circumstances?

    Ms. NORTON. Well, I think the very fact that gross negligence has to be shown so severely that it limits the universe of plaintiffs, that most employees would remain—would have a hard time from getting under the Employee Compensation Act.

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    Mr. SMITH. Thank you. Ms. Jackson Lee is recognized.

    Ms. JACKSON LEE. Thank you very much. Before I start my questions, were you suggesting precedent—of civilians or others using this as precedent to be able to raise grievances?

    Mr. SMITH. Federal employees being able to sue the government for any type of injury claim when they can show gross negligence.

    Ms. JACKSON LEE. But you are not talking about this being a precedent for arguments by lawyers which could be made by others who may be suing the government?

    Mr. SMITH. I am talking about Federal employees.

    Ms. JACKSON LEE. Let me again thank my colleagues for their very able testimony and abbreviate my questions. I think, Congressman Farr, you were citing—I mentioned three of them and you cited two other incidents where compensation had occurred. Are there any others that you would like to put in the record where we have some examples of compensation?

    Congresswoman Norton, if you have some, I just want to make sure that we covered those in the record.

    I mentioned Black Hawk, Italy and Belgrade, and Congressman Farr mentioned two others.

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    Ms. NORTON. I think, historically, the government often has done this on a case-by-case basis. I don't think that the compensation should depend on the ad hoc advantage one may have in securing a hearing or having an influential Member of the Senate or the House come forward. But I don't believe that this began with the cases that we have cited. I think there is a long history of compensating people.

    Mr. FARR. The cases that I have cited have just occurred since the crash.

    Ms. JACKSON LEE. You are going just where I was either leading or following, which is the disparate or sort of the spontaneous nonfocused decisionmaking that we seem to be engaged in. And I would just ask a question and then I will make a statement.

    Congresswoman Norton, your legislation allows access to court, access to the courtroom, and it has a standard gross negligence. In what circumstances would we think the FECA laws should be lifted, or some special threshold? Your legislation has gross negligence. Do you think that is the standard that we should be using?

    Ms. NORTON. I think once you say that you have to have gross negligence, almost everybody else falls away. The kinds of circumstances—an airplane accident is a resipsaloquitur situation. That is to say, it is totally in the control of whoever operates the airplane. That is the kind of situation where gross negligence is likely to be found.

    We have not pretended to envision every circumstance or, indeed, circumstances outside of plane crashes. But we think that the Federal Employees Compensation Act has been successful through the years to deal with a very broad range of negligence. Therefore, I think the window opened by my bill is a very, very small one indeed and particularly since the burden would be on the plaintiff since the standard is so high. I think that is the least we ought to do. Otherwise, I think this committee is going to have other hearings like this over time and I don't think that you should spend your time doing that. That is what courts are for.

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    Ms. JACKSON LEE. My line of questioning was to suggest that the bills parallel. Mr. Farr's bill responds to an immediate concern and relief for families of an ongoing tragedy. Yours does as well, but it gives guidance to the Federal Government and committees, and ultimately provides a standard under which those who happen to be Federal employees can seek redress of their grievances, and I applaud both of those initiatives and would hope that we would move forward on both of them. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Ms. Jackson Lee. The gentleman from California, Mr. Berman is recognized.

    Mr. BERMAN. Thank you, Mr. Chairman.

    I assume that the benefit that the Chairman asked Mr. Farr about is a benefit from the Federal Employee Compensation Act, which is essentially the Federal workers compensation law and which has no relationship to the conduct of the employer, the U.S. Government. In other words, it would apply whether there was negligence or not.

    It would seem to me that in the case of gross negligence, the notion of providing an additional benefit—we shouldn't rule that out simply because the employer, the U.S. Government, is paying a workers comp benefit which would have applied for any injury sustained by the employee in the scope of his employment without regard to the negligence of the government. My initial take on that would be that it is not inappropriate to provide the additional benefit.

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    In workers comp cases, parties frequently have third-party remedies to collect over and above their workers compensation benefits from the operator of the vehicle, the manufacturer, all kinds of different parties. So that is just one quick take on an interesting issue posed by the Chairman.

    But it seems like Mr. Farr's bill is specifically related to this incident and how to help the families and survivors of the government employees who were injured, in contrast with the nongovernment employees who have pursued judicial remedies.

    Ms. Norton, I don't understand in your bill the distinction between gross negligence by the government arising outside the U.S. Is that more just a notion of—as opposed to anywhere—is that just a notion, at least at this point, limiting the potential exposure of the U.S. Government? Is there some underlying rationale that says that it is more appropriate to do it outside, to lift that immunity for accidents arising outside the U.S. than anywhere?

    Ms. NORTON. I'm sorry, I'm not aware that the bill talks about gross negligence of accidents outside of the United States only.

    Mr. BERMAN. Oh. Then I misunderstand your bill.

    Ms. NORTON. Apparently the Tort Claims Act provides an exception for accidents outside of the United States, and, in part, this language is meant to deal with that exception.

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    Let me be clear, though. It is very important to know that these families do not begin by asking for money. They did not begin by asking for an amount which probably would have been easier for them to obtain. They believed that there should be a remedy for themselves and for others in similar situations. The anguish they experienced by finding themselves outside of the coverage of the law is what my bill responded to. And I now strongly endorse Representative Farr's bill because of the difficulty we have had in getting a change in law. We know that we will have to go through the House and the Senate. It has taken us 4 years to get even a hearing. We believe, at this point, that it has been so long that the families reluctantly have said that they would close the books on an amount even though they still support the bill and believe, we should continue to work the bill through.

    Mr. BERMAN. I understand. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Berman. The gentlewoman from California, Ms. Lofgren is recognized.

    Ms. LOFGREN. My question is for Congresswoman Norton, and not being an expert in the area of liability in the Federal Government, this answer may be obvious to everyone but me. I understand the exception that you are crafting in your bill for gross negligence outside the U.S. I think there is certainly rationality behind that proposal.

    My question relates to the application of your proposal on military action itself. I think that there is a distinction that could logically be made between civilian employees of the government who are outside the United States, the victims of gross negligence, versus soldiers who are in a war situation or others where we probably do not want to impose a tort liability standard on the waging of combat in war. How would your bill relate to a combat situation, if at all?

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    Ms. NORTON. The bill would relate not at all to the combat situation because the Congress has, of course, seen fit to recognize its obligations when there are military personnel involved.

    My staff tells me that you are referring to section 1 of the bill. I now understand the distinction that Congressman Berman was making. Section 1 related to the civilian employees, and there we had this anomaly whereby it appeared that they could not receive compensation because it was outside of the United States, but they have received some compensation under the Military Claims Act. So, I am narrowing that section of the bill to cover—in fact, I may exclude it altogether because it looks like the Military Claims Act covers anybody who is on a military aircraft. What it does not cover is somebody who is injured, let us say abroad who is a State Department employee and there is gross negligence. The bill does nothing to cover that person.

    Initially, I thought there was nothing to cover these civilian employees. We have learned that they have received several millions of dollars, each of these families, under the Military Claims Act. But since the situation that we are talking about involved the military aircraft, I now am limiting my bill—I am taking section 1 out of my bill because those people got compensation.

    Ms. Lofgren's question is important because it is important to emphasize that the military personnel have been compensated. It is the civilian workers, the civilian employees who found themselves outside of the law, as it were.

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    Mr. FARR. May I add that the fund that we are seeking redress from is the Air Force payment of claims fund, the money is there. It has to be authorized for expenditure.

    Mr. SMITH. Thank you. The gentleman from Massachusetts, Mr. Frank, is recognized.

    Mr. FRANK. Thank you, Mr. Chairman. Serving in Congress, you are often presented with extremely difficult issues which are complex and which involve conflicting values. Today is not one of them. It is a disgrace that the United States Government is putting the families through this nonsense. These are hardworking, dedicated, decent people who lost their lives. It was no individual's fault, but it was a terrible accident; and for the richest government in the history of the world to begrudge these people the compensation that they are asking for is unbecoming. I am not concerned about the possibility that they might be overcompensated because some of them would get their spouse's salaries. Of course the ones that didn't have spouses, their families would not be getting any. I doubt anybody would say that is a fair deal, and I will go away whole. No, we don't come close to making these people whole. Treating these people as subrogates, we ought to be honoring them for the sacrifices that their families made.

    I have been reading the Department of Justice testimony. Maybe I should not be here when DOJ testifies. Boy, is it aggravating to have this bureaucrat pap—and I should have used a word that rhymes with pap—come forward.

    We are told that a number of agencies have authority to negotiate settlement. A number of Federal agencies have authority to negotiate settlements when American or foreign citizens are injured by United States negligence. You know what that means: A number do and a number don't. If you are going to die in your country's service, try to die in the service of one of those agencies that has the authority, because if you don't, the Federal Government will add insult to injury. What is the purpose of that? What is the matter with this administration? Why this kind of niggling and haggling over something like this?

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    Let me ask you, because I am not fully aware—under the Military Claims Act, from the Department of Justice statement, they take a total walk on Mr. Farr's bill, because even apparently the bureaucrats over there couldn't think of a reason to say no to it. So they ignored Mr. Farr's bill or, rather, they didn't have anything bad to say.

    Under the Military Claims Act, the Secretary of Defense has discretion to pay claims. Were any of the victims' families compensated under that act, do you know?

    Ms. NORTON. Not the Federal employees. The irony is that the non-Federal employees, the corporate employees were.

    Mr. FRANK. Why did the Department of Justice cite an authority for compensating people which doesn't affect the people at issue as a reason not to pass a bill that affects the people at issue?

    Again, they say under the Military Claims Act, the Secretary of Defense has discretion to pay claims. Does that apply to these people? If it doesn't apply, why did you mention it?

    Ms. NORTON. Except to show the unequal treatment.

    Mr. FRANK. Yes, I think that is right. You are right, Ms. Norton. Maybe they are trying to show what integrity they have.

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    We are told by the Department of Justice how hard it is to have a lawsuit in a foreign country. It is really hard to do that because the witnesses might not cooperate. What they argue—and of course I think Ms. Norton has really taken that into account, and that is why she says gross negligence only overseas. That is a concession. It is only gross negligence overseas, obviously a much clearer case. But what this Department of Justice argument is, because it will sometimes be hard to try a lawsuit overseas, no one should ever be allowed to bring one, no matter the justice of the case. The answer is, God forbid we should have to work and maybe offend someone in a foreign court. So in return, we will just deny every American a chance at justice. I agree with my colleague, Ms. Norton, that the preferable way to do this is legislatively.

    I would strongly support both bills, the gentleman from California's bill to compensate these people and the gentlewoman from the District of Columbia, her bill, so that future people will be compensated more reasonably.

    Mr. SMITH. Thank you both, our colleagues, for being here. Mr. Farr?

    Mr. FARR. May I respond to one comment that Mr. Frank made. The administration didn't talk a walk on my bill. The Secretary of Commerce Mr. Daley submitted to the record a statement of support. He said I want to express our deep support for H.R. 3295 before the subcommittee. I had a conversation with him and he told me this came directly from the president who called from Air Force One and said this is what the administration wants to do.

    Mr. FRANK. So the administration is officially in favor of your legislation; is that correct?

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    Mr. FARR. It is. It is in strong support of my legislation.

    Mr. FRANK. I apologize in that regard.

    Mr. SMITH. Thank you, Mr. Farr.

    Mr. SMITH. With Mr. Frank's earlier warm words of welcome, we now go to the second panel consisting of the witness from the Department of Justice. I will introduce her as she comes forward, Robin E. Jacobsohn, Deputy Assistant Attorney General, Department of Justice. She is making her first appearance before the subcommittee, and I had hoped that we were going to be somewhat gentle with our questions, but I am afraid that I can't speak for others, particularly Mr. Frank. We look forward to your testimony.

STATEMENT OF ROBIN E. JACOBSOHN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE

    Ms. JACOBSOHN. Thank you and good morning, Mr. Chairman and members of the subcommittee. I am pleased to appear before you to today to present the views of the Department of Justice on H.R. 1371. Focusing exclusively on that, this legislation proposes two substantive amendments to the Federal Tort Claims Act, the statute in which the United States, under specific limited circumstances, waives its sovereign immunity for suits in tort. H.R. 1371 would amend the Federal Tort Claims Act to eliminate the foreign country exception and allow tort suits based upon the negligent acts or omissions of Federal employees in foreign countries. It would permit Federal employees to sue the United States for injuries arising from gross negligence of other Federal employees, even though they already receive compensation for such injuries under the Federal Employees Compensation Act as well as an array of Federal benefit programs.

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    Under current law the Federal Employees Compensation Act provides compensation for on-the-job injuries, regardless of fault, and in exchange prohibits suits against the United States for job-related injuries.

    If enacted, this proposal would entangle the United States in protracted litigation in two areas. The cost of that litigation in terms of its financial, social, foreign relations and morale implications would be substantial. As a result, the Department of Justice strongly opposes enactment of this bill.

    The foreign country exception to the Federal Tort Claims Act excepts from the general waiver of sovereign immunity any claims arising in a foreign country. Section 1 would strike that exception and require U.S. courts to apply the substantive law of the domicile of the plaintiff in such claim. Thus, if enacted, the bill would require courts in the U.S. to examine witnesses to events which took place in foreign countries, either by bringing them here, which is often not possible, or attempting to invoke procedures overseas to take their testimony in their home countries. Logistical problems include the need for multiple translators, active court management of complex discovery procedures and disputes and difficulties inherent in trying to prove what the applicable foreign law might be. The transaction costs for automobile accidents or slip-and-fall incidents would be prohibitive.

    Diplomatic problems can be expected when foreign witnesses do not wish to be subjected to examination, when foreign procedures do not permit discovery of critical evidence, when United States judges are perceived as misapplying foreign law; and diplomatic problems would certainly arise when foreign nationals allege that United States officials negligently processed their visa applications or barred their exports, every case being a minefield—potentially infringing on foreign sovereignty or interfering with foreign relations.

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    Nor is there a need for the proposed change. A number of Federal agencies have authority to negotiate settlements when American or foreign citizens are injured by United States negligence in foreign countries. Those are agencies which tend to have personnel overseas, which is why those are the ones that focus on that issue—the Foreign Claims Act provides recovery to foreign nationals; the Military Claims Act which provided compensation in this case to the U.S. private citizens; and the State Department Basic Authorities Act—because those are the agencies that tend to practice in foreign countries.

    In a similar vein, claims alleging negligence by United States military personnel are frequently governed by Status of Forces Agreements between the United States and foreign countries. These are carefully crafted agreements designed to address claims of injuries and damages, and it would be unwise to take unilateral steps that might disrupt these delicate international relationships or agreements.

    Section 2 of H.R. 1371 would allow all Federal employees, whether foreign or domestic, to sue the United States in tort for gross negligence, despite the fact that the FECA provides the exclusive remedy for all claims of job-related injury. FECA is similar to workers compensation statutes in virtually every State in this union. The remedy provided is certain and not fault based, there is no requirement that they prove liability, and the compensation is awarded based on fixed criteria established by Congress to be fair and equitable to all similarly situated employees.

    The comprehensive compensation scheme provided to Federal employees must be viewed in its entirety rather than focusing on a single component and includes a number of benefits such as Federal Employees Group Life Insurance, Civil Service Retirement System benefits, Federal Employees Retirement System, and many others.

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    Under the FECA system, transaction costs and disruption of the workplace are minimized and similarly situated employees receive similar compensation.

    If H.R. 1371 were adopted, all of this would change. Every injury would be subject to the adversarial process in Federal court if the injured employee simply alleged that the injury arose from gross negligence, which is an allegation that any competent attorney could and readily would make. It would likely lead to disruption in the workplace, and ill feelings between employees with similar injuries but different legal claims.

    The cost of processing even simple cases would rise dramatically and would place Federal employees in a different posture from all of their counterparts on the State level who are treated under the workers compensation systems of their States.

    It would also be a mistake to attempt to tie enhanced compensation to the degree of the government's fault. An individual's injuries are the same regardless of the degree of fault. To provide different recoveries not tied to the nature of those injuries is to permit punitive damages against the government, which Congress has wisely decided not to do. The taxpayer should not be taxed with punitive awards. Imposition of punitive damages on government entities serves no purpose. The wrongdoer is not punished. It is the taxpayer who foots the bill. The bill is ill-conceived and unwarranted and for all of those reasons I urge that it not be enacted.

    I appreciate the opportunity to present the Department's views on H.R. 1371 and ask that my written statement be placed in the record. I am happy to answer any questions.

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    Mr. SMITH. Thank you for your testimony.

    [The prepared statement of Ms. Jacobsohn follows:]

PREPARED STATEMENT OF ROBIN E. JACOBSOHN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISON, DEPARTMENT OF JUSTICE

    Good morning Mr. Chairman and Members of the Subcommittee. I am pleased to appear before you today to present the views of the Department of Justice on H.R. 1371. This legislation proposes two substantive amendments to the Federal Tort Claims Act, the statute in which the United States—under specific, limited circumstances—waives its sovereign immunity for suits in tort. H.R. 1371 would amend the Federal Tort Claims Act to eliminate the foreign country exception (28 U.S.C. §2680(k)), and thereby allow tort suits based upon the negligent acts or omissions of federal employees in foreign countries. Additionally, it would permit federal employees to sue the United States for injuries arising from the ''gross negligence'' of other federal employees, even though they already receive compensation for such injuries under the Federal Employees Compensation Act (FECA), as well as an array of federal benefit programs. Under current law, the Federal Employees Compensation Act provides compensation for on-the-job injuries—regardless of fault—and in exchange, prohibits suits against the United States for job-related injuries.

    If enacted, this proposal would entangle the United States in protracted litigation in two areas which are ill-suited to our adversary system. The cost of that litigation—in terms of its financial, social, foreign relations and morale implications—would be substantial. The Department of Justice strongly opposes enactment of this bill.

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Elimination of The Foreign Country Exception

The foreign country exception to the Federal Tort Claims Act, 28 U.S.C. §2680(k), excepts from the general waiver of sovereign immunity, ''Any claim arising in a foreign country.'' Section 1 of H.R. 1371 would strike that exception and require United States courts to apply the substantive ''law of the domicile of the plaintiff in such claim.'' Sec. 1 (b). Thus, if enacted, the bill would require courts in the United States to examine witnesses to events which took place in foreign countries, either by bringing those witnesses here (which will often not be possible), or by attempting to invoke procedures overseas (where such procedures exist) to take their testimony in their home countries. Logistical problems would include the need for multiple translators, active court management of complex discovery procedures and disputes, and difficulties inherent in trying to prove what the applicable foreign law might be. The transaction costs for automobile accidents or slip and fall incidents could be prohibitive. Expert testimony in medical malpractice cases would focus on the standard of care in the country of the plaintiff's domicile, regardless of whether that standard is comparable to that established for the United States physicians who provided the care, and regardless of whether it is consistent with the standard applicable in the country where the physician was practicing at the time.

Diplomatic problems can be expected when foreign, non-party witnesses do not wish to be subjected to examination, when foreign procedures do not permit discovery of critical evidence, when United States judges are perceived as misapplying foreign law to match their own views of what is just, and when results reached do not conform to foreign expectations. Diplomatic problems would certainly arise when foreign nationals allege that United States officials negligently processed their visa applications or barred their exports. The threat of tort litigation would be available to any foreign national who wished to make a political statement. It can be expected that foreign citizens who would otherwise be denied entry visas will bring tort suits as a ''back door'' for gaining entry into the United States. Every case would be a potential minefield where any step might be seen as infringing on foreign sovereignty or interfering with foreign relations.

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Nor is there a demonstrated need for the proposed change. A number of federal agencies have authority to negotiate settlements when American or foreign citizens are injured by United States negligence in foreign countries. For example, the Foreign Claims Act, 10 U.S.C. §2734, allows claims by foreign nationals for property damage, personal injury or death arising from non-combatant activities of the DOD and Coast Guard which occur outside the United States. These claims are resolved administratively by the Secretary of Defense, in his discretion. Under the Military Claims Act, 10 U.S.C. §2733, the Secretary of Defense has discretion to pay claims for property damage, personal injury or death arising from non- combatant activities of the DOD and Coast Guard, regardless of where they occur, that are not cognizable under the FCA or FTCA. The State Department Basic Authorities Act of 1956, 22 U.S.C. §2669(f), gives the Secretary of State administrative authority to ''pay tort claims'' which arise in foreign countries in connection with Department of State operations in the manner authorized by the Federal Tort Claims Act. These statutes are used on a daily basis to resolve claims arising in foreign countries. They are part of a system that has worked well to provide compensation without the need for, or the complications of, litigation.

In a similar vein, claims alleging negligence by United States military personnel are frequently governed by Status of Forces Agreements (SOFAs) between the United States and foreign countries—of which there are over 100. The NATO SOFA provides that the host country, through its own procedures, will represent the visiting forces in the event of any claims or litigation, and the visiting country will reimburse a portion of any judgment or award. The NATO Status of Forces Agreement, along with a significant number of bilateral agreements, are carefully crafted agreements with foreign countries that are designed to address claims of injuries and damages, as well as numerous other issues. It would be unwise to take unilateral steps that might disrupt these delicate international relationships and agreements.

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''Gross Negligence'' Exception to The Federal Employees Compensation Act

Section 2 of H.R. 1371 would allow federal employees to sue the United States in tort, for ''gross negligence, '' ''[n]otwithstanding'' 5 U.S.C. §8116(c), which generally provides that the liability of the United States under the Federal Employees Compensation Act ''with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States. . . .'' The language of §8116(c) is similar to language in workers' compensation statutes in virtually every state in the Union. The remedy provided by these statutes is certain and not fault-based: if an injury is incurred on the job, the employee or his estate is entitled to compensation. The compensation is awarded based on fixed criteria established by Congress to be fair to all employees. The compensation scheme provided to federal employees must be viewed in its entirety, rather than focusing on any single component. The comprehensive compensation scheme for federal civilian employees includes:

Federal Employees Group Life Insurance (FEGLI)—Life insurance proceeds are payable under FEGLI if death occurs while an employee is insured, no matter what the cause of death. An increased accidental death benefit is payable, unless the cause of death falls under one of the expressed exceptions. [Unless the employee designates a specific beneficiary, the FEGLI benefit is paid according to the order of precedence mandated by law.] (5 U.S.C. Chapter 87)

Civil Service Retirement System (CSRS)—A monthly survivor annuity is payable to an eligible spouse if an employee had completed at least 18 months of creditable civilian service and died while subject to CSRS deductions. [The guaranteed minimum amount of survivor annuity is 55% of the lesser of 40% of the employee's high-3 average salary at date of death or the amount the annuity would have reached had the employee worked until 60 years old at the same high-3. When the widow's or widower's annuity based on the employee's actual service would be more than the amount under the guaranteed minimum provision, the spouse receives 55% of the annuity that would have been earned by the employee at the date of death.] (5 U.S.C. Chapter 83)

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Federal Employees' Retirement System (FERS)—The basic employee death benefit is payable if the employee had completed at least 18 months of creditable civilian service and died while subject to FERS deductions. [If the deceased employee had more than 18 months but less than 10 years of service, the basic death benefit amount is a lump sum payment (currently $22,066.52) plus a lump sum equal to the higher of half of the annual basic pay at the time of death or half of the employee's high-3 average salary. If the deceased employee had 10 or more years of service, the surviving spouse is entitled to a survivor annuity equal to one-half of the employee's earned annuity] (5 U.S.C. Chapter 84).

Leave, Final Pay & Thrift Savings Plan—A civilian employee beneficiary receives a lump-sum payment for unpaid compensation and all unused annual leave accrued (5 U.S.C. §6303). The sick leave balance is applied in the calculation of a survivor annuity if the employee was under CSRS. The employee's designated beneficiary receives any amount in the employee's Thrift Saving Plan account. (5 U.S.C. §8433)

Federal Employees' Compensation Act (FECA)—If death occurs from injury sustained in the performance of duty, survivors of civilian employees of the Federal government are entitled to tax-exempt compensation payments. The surviving spouse is compensated at a rate of 50% of the deceased employee's salary. If children are eligible in addition to the spouse, compensation is 45% plus an additional 15% for each child, to a maximum of 75% of the employee's regular pay. FECA benefits are not available if the survivor elects to receive an annuity under CSRS/FERS. Also, under FECA, the government pays up to $800 for funeral and burial expenses. If an employee dies away from the area of residence, the cost of transporting the body to a place of burial is also paid. In addition, a $200 allowance is paid in consideration of terminating the deceased's status as a Federal employee. (5 U.S.C. §8133–8137)

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Death Gratuity Payment—A death gratuity of $10,000 is paid when a civilian employee dies from an injury sustained in the line of duty. The amount payable under the Federal Employees' Compensation Act (which normally equates to $1,000) is subtracted from the $10,000 payment. (Section 651 of P.L. 104–208)

Federal Employees Health Benefits Program (FEHBP)—A survivor may continue enrollment in the FEHBP if the deceased employee was enrolled for self and family at the time of death and at least one family member is entitled to a monthly annuity as the survivor of the deceased employee. If the surviving spouse of a deceased FERS employee is not eligible for monthly survivor annuity benefits (because the employee had less than 10 years of creditable service), he or she may, nonetheless, elect to continue coverage provided the surviving spouse is eligible for the basic death benefits. (5 U.S.C. Chapter 89)

Tax Benefits—Proceeds of FEGLI policies that are paid as a death benefit to a designated beneficiary are not taxable as income to the beneficiary. Survivors benefit payments under CSRS and FERS are taxable as income.

Under the FECA system, transaction costs and disruption of the work place are minimized. Similarly situated employees receive similar compensation, without regard to which state they live in, whether they hire attorneys, or whether they lose their limbs or their lives because of gross negligence, negligence, or an Act of God. Employees are not pitted against one another or their agencies. As the Supreme Court recognized when it enacted FECA:

''Congress adopted the principal compromise—the 'quid pro quo'—commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government.''

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Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983).

    If section 2 of H.R. 1371 were adopted, all this could change. Every injury would be subject to the adversarial process in federal district court if the injured employee alleged that the injury arose from gross negligence—an allegation that any competent attorney could, and readily would, make. This change would invite considerable litigation. It would likely lead to disruption in the work place and ill- feeling between employees with similar injuries, but disparate legal theories. The costs of processing even simple cases would rise dramatically. The costs of potential tort judgments could be very large indeed. Finally, it would place federal employees in a position far different from virtually all private employees. Private employees are covered by nearly universally applicable state workers' compensation statutes. Indeed, as the GAO recently observed, most of these statutes appear to pay benefits that are less generous than the benefits the Federal Employees Compensation Act affords. GAO Report B–260237 (April 3, 1996), at 2.

    In addition, it would be a mistake to attempt to tie enhanced compensation to the degree of the government's fault. An individual's injuries are the same regardless of the degree of fault. To provide differential recoveries not tied to the nature of injuries is, in essence, to permit exemplary or punitive damages. Congress has wisely established the policy that the public fisc, and thereby the American public, should not be taxed with punitive awards. 28 U.S.C. §2674. This prudential and sound policy counsels against the ''gross negligence'' standard for enhancement of recoveries.

    The ''gross negligence'' standard is, by definition, punitive in nature. Molzoff v. United States, 502 U.S. 301, 307 (1992). Punitive damages are not intended to compensate the victim, but instead to punish the wrongdoer and deter future, similar misconduct. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267–68 (1981). Imposition of punitive damages on governmental entities does not serve that purpose. Id. at 267. The wrongdoer is not punished; rather, it is the taxpayers who pay the bill. ''Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.'' Id.

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    It is fair to expect that attorneys will allege ''gross negligence'' whenever federal employee clients are injured on the job. These cases can be expected to be numerous and complex enough to create a need for more government attorneys with which to defend them. This bill is ill-conceived and unwarranted. For all of the foregoing reasons, we urge that it not be enacted.

    I appreciate the opportunity to present the Department's views on H.R. 1371 and I would be happy to answer any questions.

    Mr. SMITH. One quick question, and that is if you would go into a little more detail about the danger of setting the precedent for suits against the government for gross negligence.

    Ms. JACOBSOHN. It is not an objective, precise standard. It varies by State, but involves concepts such as recklessness or misconduct that is beyond simply mere negligence. There is no objective criteria by which to distinguish gross negligence from regular negligence, and certainly nothing to prevent everyone who has a claim from alleging gross negligence. At some point the courts will make a distinction based on the applicable State standards, but they will have to take the time to do that because the mere allegation of gross negligence will get you into Federal court and any competent lawyer would want to ensure that for his client.

    Mr. SMITH. Thank you, Ms. Jacobsohn. Ms. Jackson Lee is recognized.

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    Ms. JACKSON LEE. Thank you very much, Mr. Chairman.

    I have noted on the first page of your testimony you cited the opportunities for compensation. I think the testimony includes a whole litany of various provisions for which the injured party might seek compensation, but I am not sure if you heard comments earlier that suggested that some of the families that are covered under this particular legislation, particularly the Farr legislation, may have received a cumulative of $10,000. There may be some portion of the salaries, some 45 percent of the salary which varies as compared to some of the settlements which have occurred in some of the more noted tragedies which have occurred overseas.

    My question, since most of your testimony is on the issue of logistics and the standards for gross negligence, I don't recall the difficulty in courts of law, particularly at the level of gross negligence, of either total—or inconsistency at that level in most State common law or the difficulty in distinguishing gross negligence. Why is it that DOJ is so up in arms about that standard when it is throughout American common law?

    Ms. JACOBSOHN. There are two answers to your question. While gross negligence as a standard does exist throughout common law, the standards by which it is assessed can vary from State to State and those standards themselves do not have any objective or easily definable components up front; thus, everyone would be able to allege gross negligence. All cases that are now handled under FECA would go into Federal court, and the courts would have to determine which ones under the applicable law meet the criteria of their State and which ones don't. It would invite everyone into Federal court for the courts to sift through.

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    Secondly, if you go beyond compensating someone for the actual injury they suffered, it really is tantamount to punitive damages and it has no legitimate purpose with respect to a governmental entity because you are not deterring or punishing that entity, you are simply requiring the taxpayer to foot the bill.

    Ms. JACKSON LEE. It is interesting. Obviously the Federal Government has to act in the position of a defendant. When we were analyzing tort reform and these kinds of stories were being represented as to why we should have tort reform, I can assure you if you make an analysis of the courts of this Nation—I don't have the data for foreign courts—you would find in most instances plaintiffs do not prevail. And so the horror stories of what you are presenting here as the unevenness of the standards and the burden on the taxpayers is probably just a glimmer in our eyes. The courts do not open the doors to plaintiffs at a drop of the hat. Most cases that are won are won at great expense but that are egregious cases. That argument, although I appreciate it having to be made, is not a convincing argument for me.

    What I would ask is one of the points is that we have this uneven response which is that some legislator has to come forward when it affects a constituent. With respect to the Farr bill as you look at the particular analysis of benefits, do you think that a $2 million settlement or a $2 million amount of money for the families would be unfair? In light of the Cavalese death, the families received $2 million, the amount put in an amendment through the appropriations bill by Senator Chuck Robb. Have you assessed the amount of money for the particular families in this case?

    Ms. JACOBSOHN. No. Indeed the administration supports H.R. 3295—I am here solely to address H.R. 1371. With respect to 3295, the Office of Management and Budget or the Commerce Department will be happy to address those issues.

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    I should add, distinct from that legislation, the administration wants to work with Congress on a systematic approach to addressing issues relating to surviving families and that may also address some of the concerns that you have expressed.

    Mr. FRANK. Did we invite OPM or Commerce?

    Mr. SMITH. Commerce and OPM declined to appear.

    Ms. JACKSON LEE. Reclaiming my time, we have a statement that we put in the record, Mr. Frank, from the Secretary of Commerce that was handed in this morning indicating his support for the Farr bill.

    You sort of again went where I was going, which is whether or not it is better to have this inconsistent legislative approach in your opposition to H.R. 1371 or whether or not there needs to be a collaborative effort on the part of the administration in working in some consistent way to handle these egregious circumstances. One of the points that Congresswoman Norton made is in particular in relationship to the CT–43A, the plane Ron Brown was on, that our own Air Force noted three independent reasons of the accident, that any one of them amounted to gross negligence. So it was sort of a very clear A–B–C, 1–2–3 that you could acknowledge.

    Is the Department of Justice suggesting by your last statement that you see the—both the unfairness and the inconsistency in approach, that the Department of Justice would be willing to assess or look at ways that families could be compensated in a court proceeding as opposed to the way that we have it at this point?

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    Ms. JACOBSOHN. Well, Congresswoman, without suggesting any prejudgment of the issue, the administration is anxious to work with Congress to address those issues and to discuss ways to approach it. I don't believe that any determination has been made at this point. What I can tell you as a purely factual matter is that both the Military Claims Act, under which the U.S. private citizens were compensated in this case, and the Federal Employees Compensation Act, which provides the remedy for the Federal civilian employees, are driven largely by the principle that you compensate the lost income or wages for those who depend on that income, which is typically spouses and children. When you compare the income for the civilian employees, it was very different from the private citizens. Under any of these approaches, you would get different results because they were not similarly situated.

    Ms. JACKSON LEE. I appreciate the law under which you are operating now, and I think the policy discussion that we are having today is that we have found those standards in many instances in the last 2 or 3 years to be drastically inadequate; and further, that the grossness of the acts that resulted in the death or injury of these individuals were so tragic in their size, so monumental, that we believe that we as a merciful government with great humanity are probably falling short of what we should do.

    Let me conclude by saying when you use the term ''administration,'' am I hearing you to say as the administration would seek the assistance of the Department of Justice, you would be engaged in that discussion and working on that consistency issue?

    Ms. JACOBSOHN. I have no understanding at this point how the administration plans to go about that, but if they were to seek the Department of Justice's assistance, I am sure that we would do that.

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    Ms. JACKSON LEE. Thank you.

    Mr. SMITH. Thank you. The gentlewoman from California, Ms. Lofgren, is recognized. We are expecting a vote imminently.

    Ms. LOFGREN. I was about to say I will be very quick. I know that we have a vote.

    There are many ways to look at this. You have outlined the traditional workers comp rule and the rationale for it. We are familiar with that. The equal protection arguments also grate upon us and certainly the families.

    One of the questions that I have for you, the workers comp argument we understand, and we may or may not agree in the end when it relates to gross arguments issues. Essentially your argument about the courts in other countries would relate to any party, whether a Federal employee or a private party.

    Are you recommending that the law that would allow a private, nonemployed person to sue be repealed because of your reservations about due process and procedures in foreign jurisdictions?

    Ms. JACOBSOHN. Those who are not employees of the Federal Government, when injured abroad, are free to invoke the procedures of the courts abroad. So what we are addressing here is the variety of mechanisms that currently exist.

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    Ms. LOFGREN. I think your argument is illogical unless you are proposing that the entire thing be repealed, but I yield back the balance of my time.

    Mr. FRANK. Thank you. One question. You say if people could sue for gross negligence, we would be getting sued for visa denials. Wouldn't that be a discretionary function exception? Don't you think that is discretionary with the consul? That is on page 2.

    Ms. JACOBSOHN. There are two answers to your question. One is that it depends on the nature of the claim they are making. If it is ministerial processing that was done negligently, somebody lost their application, for example, that would probably not invoke policy-making discretion. So those would be allowed.

    Mr. FRANK. Do you think that would be a serious problem?

    Ms. JACOBSOHN. I think there would be a fair number. But in the event that the discretionary function exception would apply, it would still require you to go into court, and you are still invoking the judicial process which is part of our concern.

    Mr. FRANK. If someone said they wouldn't give me a visa and sued, and the government just said yeah, because we thought he was going to stay here forever, do you think that would take a lot of time?

    Ms. JACOBSOHN. It depends on the nature of the claim.

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    Mr. FRANK. Frankly, your suggesting that you want to work with us is the least convincing offer that I have had in a very long time. There is nothing in this statement that indicates any interest in trying to work it out. The statement is a completely rejectionist one. It treats the notion of compensatory damages because of negligence as if they were punitive damages, as my colleague from California pointed out.

    In the Federal Tort Claims Act, there is an exemption for discretionary functions of the Federal Government, so if you are denied a visa because the consular officer doesn't think you would be a reliable visitor or something, that is just not something that you can sue about.

    Frankly—I guess you want to join the people who want to change tort law. The Justice Department ought to get into that reform group that wants to abolish most tort law because you describe it the way that they describe it. It will just take so long. The courts do have the ability to dismiss frivolous cases and sanction lawyers who repeatedly bring frivolous cases. When the arguments that you are making are made by people who say that they are tort reformers, the President and DOJ dismiss them.

    I am just saying that the notion because there can sometimes be difficulties in foreign courts, there never should be a lawsuit, that position that there should never be a lawsuit against the Federal Government involving something that happened in a foreign country, that is the Justice Department's position?

    Ms. JACOBSOHN. The position is that the exception is appropriate for the reasons that we have outlined.

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    Mr. FRANK. You make exceptions sound tiny. The exception is every place outside of the U.S. By exception you mean nobody should ever be able to sue the United States for something that happened outside the borders of the United States?

    Ms. JACOBSOHN. No, there are a variety of other treaties, such as the Warsaw Convention in which there are provisions for doing so.

    Mr. FRANK. So that the same thing could have happened to you in Ohio, you are an American citizen and something happens to you in Ohio, and if the exact thing happens in London, you can sue in Ohio but not London?

    Ms. JACOBSOHN. We are talking about Federal employees.

    Mr. FRANK. We are—I thought Ms. Norton had two parts. One is the general exemption.

    Ms. JACOBSOHN. I thought you were talking about the gross negligence.

    Mr. FRANK. I was talking about the foreign exemption.

    You have Federal employee compensation for Federal employees. I believe that is a plausible argument but I disagree with it. But the argument that you should never be allowed to sue because foreign countries, and who knows what will happen with the courts—that is just so broadly overdone. You said that you want to work with us. If you want to work with us, you would say then, what are the safeguards; what are the problems if witnesses are not available; would you have the right to sue the Federal Government; you get the suit dismissed because relevant witnesses were not available.

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    But the notion that a nonFederal employee who is injured by Federal negligence in France or England or Canada should not be able to bring a lawsuit against the United States because it is going to be hard to get these strange courts to cooperate is very unpersuasive.

    Ms. JACOBSOHN. We are not suggesting that they have no remedy. The remedy is a different one.

    Mr. FRANK. Mr. Chairman, one last questions. Do you assure me now that every such citizen has a remedy? You mention the departments that do most of the overseas stuff. Does that—does that cover every situation?

    Ms. JACOBSOHN. No, I can't tell you that every single situation is covered.

    Mr. FRANK. Why not cover every situation?

    Ms. JACOBSOHN. Because the current system has been set up through a variety of arrangements with foreign countries, some of them through long negotiations which involve multiple aspects of treaties.

    Mr. FRANK. That is the Status of Forces. That is not true for all of these other things, the Foreign Claims Act and the Military Claims Act. Those were not negotiated with foreign governments. That is what I am talking about. That is the patchwork.

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    Ms. JACOBSOHN. When you put those pieces together, you have covered the vast majority of circumstances when you would have a claim against the U.S. Government.

    Mr. FRANK. Why not cover all of them?

    Ms. JACOBSOHN. Those mechanisms have been in place for years and have worked effectively.

    Mr. FRANK. When you do jigsaw puzzles, do you throw out 10 percent of the pieces and say I have most of the pieces so that is okay?

    Ms. JACOBSOHN. No, Congressman.

    Mr. FRANK. Thank you. That is all I have.

    Mr. SMITH. Thank you, Ms. Jacobsohn. I have to say, quite frankly, you have had a tough grilling. It is your first appearance before the subcommittee, but you handled yourself very well. We appreciate you being here.

    Ms. JACKSON LEE. I agree as well that you have, and I simply will say that I know that you had to write your testimony in a vacuum before the Air Force One call from the President. I hope that call signifies that there can be some work on H.R. 1371, and I hope that we are going to get beyond this.

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    Mr. SMITH. We stand in recess until after the vote and then we will go to the third panel which consists of the family members of the individuals killed, and Ms. Jackson Lee will reconvene the subcommittee at that time. Thank you. We stand in recess.

    [Recess.]

    Ms. JACKSON LEE. [Presiding.] I call the hearing back to order and I ask Mr. and Mrs. Kenneth Dobert, Darrell Darling and Nora Poling to come forward.

    We thank you very much for your presence. Chairman Smith indicated a standing engagement that required his attendance, but all of the testimony will be incorporated in the record.

    Might I start with the introductions of my colleague, Chairman Gekas, who is a member of the full House Judiciary Committee. Although we will not have Ms. Poling start first, we will have you introduce her and then we will start with testimony by Kenneth and Maureen Dobert.

    Mr. GEKAS. I thank the Chair. My chief purpose is to accompany Nora Poling to the witness table. She is a very good spokesperson for the cause in which she finds herself because of the tragedy that she and her family suffered as a result of the fatal crash. Ms. Poling comes from a wonderful little area, a wonderful district—mine.

    Everyone in central Pennsylvania is familiar with that particular area. Therefore, you have a background, I say to you, of how to picture the young person, the daughter of Mrs. Poling, who lost her life in the service of our country. You will have that background and atmosphere of a small town in a wonderful rural area which was abruptly left behind by the crash with respect to the daughter of Nora Poling.

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    I support the legislation and have worked toward it. We are at the turn of the corner on all of this, I believe, and I think that the testimony of Nora and the other witnesses will cement our ability to have a firm, good conclusion. I thank the Chair.

    [The prepared statement of Mr. Gekas follows:]

PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Chairman, I thank you for holding this important hearing, today, as well as for allowing me the opportunity to make a few remarks.

    I am accompanied this morning by Mrs. Nora Polling, a constituent of mine, who has made her way down from Mountville, Pennsylvania, to participate in today's proceedings. As this Committee knows, Mrs. Polling's daughter Naomi was a member of the April 1996, U.S. trade mission to the Balkans. Tragically, her young life was cut short, along with the other 34 trip participants, when their Air Force CT–43 A plane crashed into a mountain near their final destination of Dubrovnik, Croatia.

    Naomi Polling Warbasse was an exceptionally bright and talented woman, and a dedicated public servant. Entering Johns Hopkins University at the young age of 16, Naomi was bound for a successful life in the profession of her choosing. She studied abroad to focus on her developing passion for Eastern and Central European politics and history. After receiving her Bachelors in Political Science, Naomi went on to earn a Masters degree in Eastern European Studies at George Washington University. She was soon hired by the Commerce Department as an International Trade Specialist. Her abilities and professionalism were duly noted and quickly rewarded with a promotion to the post of Deputy Director of the Central and East European Business Information Center. Naomi was just 25 when she died.

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Naomi was truly a tremendous asset to the Commerce Department—and to her country. More importantly, she was a much beloved young woman with a family who cared deeply for her, and, she is terribly missed still today. Tragically, her life need not have ended so prematurely. Nor did the lives of her fellow travelers. As you know, the Air Force Accident Investigation Board concluded that multiple procedural and operational failures led to the April 3rd disaster. Failures at the command level, errors by the flight crew, and flawed landing procedures all were identified by the military as causal factors. But, that investigation has been closed. We know what happened. This Subcommittee hearing is not being held to re-open old wounds. Instead, we are here to discuss another, perhaps, more egregious failure. The failure of our government to take appropriate responsibility for its negligence, to justly compensate all 35 of the men and women who traveled to the Balkans in service to our country.

Mr. Chairman, when I first learned of the extreme difficulties that many surviving family members were having gaining fair and just compensation for their loss, I was profoundly disturbed. Ordinarily, when an individual dies in a commercial airline crash, surviving family members can make claims against life insurance policies, and file tort claims against those parties who may have acted negligently. And, under most circumstances, civilians can bring suit against the Federal government for tortious wrongs committed against them by Federal employees acting within the scope of their duties. Ironically, the relatives of the April 3rd air crash victims found themselves with no such recourse or redress. Though their loved ones had died while participating in a government organized trade mission, aboard a government aircraft, and where negligence was committed by Federal government personnel, these families were left without means of obtaining significant compensation.

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    At least one of the crash victims' families was denied a pay out from their loved one's life insurance policy because the policy did not cover deaths occurring onboard military vehicles. The relatives of the civilian, non-government trade delegates also found that current Federal law provided them no right of recovery against the Federal government for negligence—no matter how clear, even if it is admitted, as in this case—if the act or on-mission occurs overseas. The families of the civilian Federal employees aboard the flight were not much better off. Under Federal law Federal employees and their families may not sue the Federal government for injuries. Rather, the only assistance available to family members of government employees who die in a work related accident is a small death benefit of roughly $10,000 under the Federal Employees Compensation Act (FECA).

    I am happy to note that despite these legal inequities and little-known insurance policy terms, since the crash, most of the families of the 13 civilian businessmen and women on the trade delegation have reached settlements with the Air Force. Unfortunately, the relatives of the 14 civilian federal employees assigned to the trade mission have yet to receive fair compensation for their loss. That is why I have cosponsored H.R. 3295. This bill requires the Secretary of the Air Force to pay $2 million to the designated beneficiaries of each of the Federal civilian officials killed in the CT–43A crash. The Secretary is required to make all payments within 90 days of passage of the bill, and payment will constitute full settlement of all claims by the beneficiaries against the Federal government. Mr. Chairman, H.R. 3295 is a simple, straight forward piece of legislation-and one that is long overdue. I urge this Subcommittee to report the bill out favorably and soon.

    However, while H.R. 3295 will bring much needed closure to the Dubrovnik tragedy, we must also act now to prevent future unfairness, should similar situations arise. Current Federal law poses significant challenges to those survivors who clearly should be compensated when their loved one is killed through by Government wrongdoing. H.R. 1371, which I have also cosponsored, would amend The Federal Tort Claims Act in two significant ways, eliminating the problems experienced by the Balkans crash victims' relatives. First, civilian non federal personnel will have standing to file tort suits against the federal government for injuries sustained while abroad. This legal right is more necessary today than ever, as private sector and public sector officials increasingly work together overseas in a variety of ways, jointly promoting the goals of US foreign policy, national security and economic policy. Second, H.R. 1371 would amend the FTCA to allow federal employees to sue the government in cases of gross negligence. These cases are thankfully quite scarce. Thus, such a change to the FTCA is unlikely to open the Federal government up to a flood of lawsuits. What the amendment will do is to ensure that basic levels of fairness are returned to the law.

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    Mr. Chairman, Americans serving their country at home or abroad, whether in combat or peacetime, always run a level of risk that they may suffer some harm. It is the governments obligation to ensure that responsibility is taken and adequate compensation granted. By passing H.R. 1371 and H.R. 3295, Congress can ensure that when future tragedies arise, like the April 3rd, 1996 crash that took Naomi Polling Warbasse and her colleagues away from us, our federal tort law will be in line with current realities and notions of fairness. So, too, can we finally pay a worthy last tribute to 35 individuals who should never have died, but who did so serving our country.

    I thank the chairman and the Committee for your attention to this matter.

    Ms. JACKSON LEE. I thank Congressman Gekas very much. Your added support and words of wisdom, as well of introduction of Ms. Poling, will be very helpful to this committee and I thank you for your presence.

    As indicated, we wish we did not have to have this hearing as it relates to the family members, but again I am grateful that we have had the opportunity to hear this very strong testimony of certainly the authors of the legislation, and now I would like to ask both Kenneth W. and Maureen Dobert who will now speak to a lost daughter, Gail.

STATEMENT OF KENNETH W. AND MAUREEN DOBERT

    Mr. DOBERT. Good morning. Thank you for inviting us to here to testify. On April 3, 1996, 35 people died when an Air Force plane crashed Dubrovnik, Croatia. The Commerce Department trade mission hoped to return peace and prosperity after a devastating war in the Balkans. One of those killed was our daughter, Gail Elizabeth Dobert.

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    Let us tell you how her death has affected our family. Then we want to revive in this committee the sense of compassion and understanding and willingness to do the right thing that can result because of government actions.

    Mrs. DOBERT. Gail's funeral was on her 35th birthday. Her brother Ray eulogized his sister as only a brother could. Ray's most revealing words about Gail were, ''My sister was born the day that man first entered space. The headlines read 'Russian cosmonaut orbits the Earth.' Fitting for a woman destined to soar through life. My sister was very busy but always had time for her family. My sister was not a financial wizard. Her currency was people, not dollars.''

    Mr. DOBERT. Our lives have changed since Gail's death. Our retirement was planned around enjoying the lives and families of our adult children; consists instead of visits to Gail's grave and worry about the well-being of Ray, now our only child, and his family.

    Maureen lives with depression, anxiety and a sense of impending doom. Confusion, anger, despair, lethargy, indecision, and emptiness describe our grief, a heartache so unspeakable our language doesn't name the parent of a dead child, like orphan or widow. We shake our heads in disbelief, asking why.

    Mrs. DOBERT. Next we would like to discuss when our government has demonstrated its compassion and its willingness to do the right thing in the wrongful death of others.

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    Our first example of government's compassion and ability to do the right thing began on May 20, 1997 when a young goat herder, Ezequiel Hernandez, Jr., was fatally shot by a United States Marine unit. Without admitting any wrongdoing, the Justice Department and Department of Defense settled with the Hernandez family for $1.9 million. On August 12, 1998, Justice Department spokeswoman Chris Watney said, ''The settlement came under the Federal act that allows the military to settle claims caused by its activities without admitting fault as long as the injured person was not at fault.''

    The 14 government employees were not at fault. H.R. 3295 allows payment of $2 million to each family without admission of fault by the military or the U.S. Government. Compassionately and rightly, our government provided $1.9 million for the goat herder's family. By contrast, our family received $10,000.

    Mr. DOBERT. Another example of congressional understanding and fairness began in Cavalese, Italy on February 3, 1997. Twenty Europeans died when a United States jet hit the support cable of their ski gondola. On behalf of the Cavalese families, Senator Robb introduced and the Senate subsequently passed an amendment to the Emergency Supplemental Appropriations Act for fiscal 1999. Senator Robb spoke in support of the Cavalese families, saying ''The procedures established in the SOFA are designed to do justice. In this case, under the circumstances, justice is best served by having the United States take responsibility for the harm we have caused. He continued, ''Having met personally with the families, I can tell you they are not angry with the United States, but they don't understand. They are grieving but they are not greedy. They want accountability but they are not vindictive. They simply want someone to be held responsible for the deaths of their children, their husbands, their wives. This is what my amendment is about. Responsibility. It is not about money. Compensation is no substitute for the companionship of a loved one.'' Senator Robb was speaking of the Cavalese families. His comments apply to the families of the CT–43A disaster as well. The amendment was dropped in conference but each Cavalese family eventually received $2 million.

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    Seven government employees were single like our daughter Gail. One left a spouse, and five left a spouse and children. We know there is financial need.

    Mrs. DOBERT. We hope you see the discrepancy and the inequity that H.R. 3295 is trying to correct. Like Hernandez and Cavalese, ours is also a unique event and presents the opportunity for Congress and our government to accept responsibility, to do the right thing, to correct the disparities and the inequities.

    The CT–43 crash and H.R. 3295 are about the sudden violent death of Gail Dobert, Adam Darling, Naomi Warbasse, Duane Christian, Ron Brown, Steven Kaminski, Carol Hamilton, Lee Jackson, James Lewek, Kathryn Hoffman, Kathryn Kellogg, Charles Meissner, William Morton, Lawrence Payne. It was a death with no last kisses, no final good-byes. And we pray that never—that it never happens to another government family, not a Member of Congress like you or their staffs joined on a CODEL, or to any government employee. The President called them patriots. We don't mourn our patriots. We grieve the parents, sons, daughters, husbands and wives, brothers and sisters. Besides being no substitute for companionship, compensation is an inadequate measure of a life. We are asking the government for obligation beyond public mourning and minimal damages. We seek parity, responsibility, understanding and compassion.

    Mr. DOBERT. You must understand our feelings, Chairman Smith. When supporting the Hernandez family, you had difficulties getting information and concerns about training errors. Mr. Chairman, when you asked, why hasn't anyone been held accountable for this shooting, why has no one been sanctioned for their actions, where is the justice when an innocent young American is killed by the government, you voiced our concerns. Where is the justice? As subcommittee members, you have the power to make H.R. 3295 happen, or it can die right here. We ask for your compassion, for what others have received. We ask you to pass this legislation now. Thank you.

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    Ms. JACKSON LEE. Thank you very much for your testimony.

    [The prepared statement of Mr. and Mrs. Dobert follows:]

PREPARED STATEMENT OF KENNETH W. AND MAUREEN DOLBERT

    Mr. Chairman and members of the subcommittee, Good Morning. Thank you for inviting us here today to testify about The CT–43A Federal Employee Settlement Act, HR 3295. On behalf of the families, I would also like to thank Congressman Sam Farr the sponsor of HR 3295 and the 59 cosponsors for their support.

    On April 3, 1996, thirty-five people died when a US Air Force CT–43A aircraft crashed into St. Johns Hill while attempting to land at Cilipi Airport near Dubrovnik. The plane's passengers were on a United States Department of Commerce trade mission that hoped to return peace and prosperity through trade after war had devastated the land and people of the Balkans. One of the people killed on that plane was our daughter, Gail Elizabeth Dobert. Gail was one of fourteen government employees that died . . . they were all working for their government that day.

    Today, we wish to tell you about Gail and what her death has meant to our family. We also wish to stir the Committee's sense of compassion and understanding as well as the sense of fairness and willingness to do the right thing that has been shown by Congress and our government when because of its actions the untimely death of individuals occurs.

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GAIL, HER DEATH AND OUR FAMILY'S REACTION

Gail's funeral was on her 35th birthday. She was buried a day later outside of Washington, DC on her brother, Ray's, 33rd birthday. Ray, who also worked for the US government, eulogized his sister, Gail, with an intimacy only a brother could provide. We offer these comments from that eulogy so you may know Gail, too.

My sister was born the day man first entered space. The headlines read, ''Russian Cosmonaut orbits earth.'' Fitting for a woman destined to soar through life.

My sister was very busy, but always had time for her family.

My sister won't know what it's like to grow old; she'll always be young.

My sister was not a financial wizard; her currency was people, not dollars.

My sister will never meet her unborn niece or nephew, but my child will know her. (Exactly three months after Gail's funeral, Alexandra Gail was born on July 12.)

My sister said this would be her last trip . . . and it was.

Our lives have changed so since that April day. Maureen now lives with depression, anxiety and the sense of impending doom. We can't plan for the future knowing how tenuous the future is. These words describe our grief: anguish, anger, confusion, despair, lethargy, indecision, emptiness, insecurity; it's heartache so unspeakable our language has no name for parents of a dead child (unlike the descriptors orphan or widow). Life is not as we imagined it would be: we both retired early from our teaching career after Gail's death and, instead of a carefree retirement, we find ourselves anxious for the well being of son, Ray and his family and visiting Gail in her grave. In disbelief, we shake our heads asking ''WHY?'' We'd always thought our retirement would be spent enjoying the lives and families of our adult children.

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EXAMPLES OF PREVIOUS GOVERNMENTAL COMPASSION

    Next, we would like to discuss examples where our government has demonstrated compassion and its willingness to do the right thing in the wrongful death of others.

    Our first example of governmental compassion and its ability to do the right thing began on May 20, 1997 when a young goat herder, Ezequiel Hernandez, Jr., was fatally shot by a United States Marine unit doing a training exercise on the border in Texas. Without admitting government wrongdoing, the Justice and Defense Departments reached a settlement with the Hernandez family of $1.9 million. On August 12, 1998, Justice Department spokeswoman, Chris Watney, said ''the settlement came under a federal act that allows the military to settle claims caused by its activities without admitting fault, as long as the injured person was not at fault.''

    The bill being considered today, The CT–43A Federal Employee Settlement Act (H.R. 3295) provides a payment of $2 million to each of the fourteen government employees' families without admission of fault by the military or the US government. As in the goat herder's case, the injured person (that is, the fourteen government employees) was not at fault. Compassionately and rightly, our government provided $1.9 million for the goat herder's family. The Dobert family received a statutory death gratuity for burial benefits of $10,000.

    Another example of Congressional understanding and fairness began on February 3, 1997 in Calavese, Italy. Twenty Europeans died that day when a low flying United States Marine Corps jet hit the support cable of their ski gondola. By March 23, 1999 Senator Robb and others introduced an amendment to the Emergency Supplemental Appropriations Act for Fiscal 1999 on behalf of the Calavese families. The Senate subsequently passed the amendment.

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    Senator Robb spoke in support of the Calavese families saying: ''The procedures established in the SOFA (Stature of Forces Act) are designed to do justice. In this case, under the circumstances, justice is best served by having the United States take responsibility for the harm we've caused.'' The Senator continued: ''Having met personally with the families, I can tell you they are not angry with the United States, but they don't understand. They are grieving, but they are not greedy. They want accountability, but they are not vindictive. They simply want someone to be held responsible for the deaths of their children, their husbands, their wives. This is what my amendment is about—responsibility. It is not about money. Compensation is no substitute for the companionship of a loved one.'' Although he spoke of the Calavese families, Senator Robb's comments could have applied to the families of the CT–43A disaster as well.

    The amendment was dropped in conference, but, about three years after the Calavese deaths, the families received $2 million each—the amount originally called for in the amendment. We do not know the private, financial affairs of the other thirteen government employees, but we can tell you that seven were single like Gail, one left a spouse and five of those that died left a spouse and children. We do know financial need exists.

H.R. 3295—FEDERAL EMPLOYEE SETTLEMENT ACT AND THE CT–43 VICTIMS

    Through our discussion, we hope you see the discrepancy and inequity that the CT–43A Federal Employee Settlement Act is attempting to correct. This is one of those unique occasions for Congress and our government to face their responsibility and do the right thing just as they did for the Hernandez and Calavese families. Only Congress can correct the disparities and inequities created by the wrongful death of our loved ones.

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    The crash of the CT–43A, and the legislation before you today, are about the death of Gail Dobert, Adam Darling, Naomi Warbasse, Duane Christian, Ronald Brown, Steven Kaminski, Carol Hamilton, Lee Jackson, James Lewek, Kathryn Hoffman, Kathryn Kellogg, Charles Meissner, William Morton and Lawrence Payne—fourteen government employees all doing their job at the time of their death. We pray our tragedy (whose circumstances were extremely unique) with its violence and suddenness leaving no chance for a last kiss or final good-bye, NEVER, NEVER happens to another government employee's family. This includes Congressional members like you, staff members who often participate in Congressional CODELs, government employees from any of the departments and agencies of the US government.

    When the bodies arrived back on American soil, the President called the CT–43A victims ''patriots'. We do not mourn them as patriots—we grieve the loss of parents, sons and daughters, husbands and wives, brothers and sisters. Compensation is an inadequate measure of a life or, as Senator Robb compassionately noted: ''Compensation is no substitute for companionship.'' We are asking for parity, responsibility, understanding and compassion. Government has shown its obligations to be more than public mourning and minimal damages.

CONCLUSION

    We know you understand our feelings, Congressman Smith. While you supported the Hernandez family, there were difficulties trying to get information as well as concerns about training errors. Mr. Chairman, when you asked: ''Why hasn't anyone been held accountable for this shooting? Why hasn't anyone been suspended, sanctioned or penalized for their actions? Most importantly, where is the justice when an innocent, young American is killed by his government?'' you showed how you care about our citizens.

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    As members of this sub-committee, you have the power to make HR 3295, The CT–43A Federal Employee Settlement Act happen for our families or it can die right here without allowing it a full sense of the Congress. We ask for your compassion; we ask for what others have received; we ask for our chance. We ask you to pass this legislation now.

    Ms. JACKSON LEE. Darrell Darling, we know that you lost a son, Adam.

STATEMENT OF DARRELL W. DARLING

    Mr. DARLING. Thank you, members of the subcommittee, I am Darrell Darling. My wife is here with me today, Karen. Our son Adam was only 29 when he was killed with 34 others on St. John's Hill in Cilipe, Croatia. I will tell you a brief story to give you a glimpse of Adam.

    Adam's best friend was from Davis. He was one of about a dozen boys in the neighborhood. Adam and Kris spent every day after nursery school watching Mr. Rogers. They were in—they roomed together at the University of California and went to Germany together as Karl Duisberg Fellows, Adam in the Budestag, Kris as a journalist. The very last person that Adam saw on this earth was his best friend's brother before they took off. Stationed at Lukavac, he was a serviceman, whom Adam had not seen for several years, with the peacekeeping mission.

    I am reading a portion of the letter that we received from Bosnia just a few days after Adam's visit. He said, ''I spent several hours with Adam the day he died. He was a good friend and a fine young man and I share your loss.'' Later, on April 2, I received a call from the Joint Information Bureau. One of Ron Brown's assistants had been trying to track me down for several days. Ten minutes later, Adam called. Imagine my surprise. I couldn't believe I was hearing from an old friend, there in the middle of Bosnia. Some time later a little white truck with German license plates pulled up in the parking lot. I was expecting a four-vehicle convey. When it got close enough, I saw it was Adam. I told him that I had gotten permission to go with him. When we got to my tent I packed a light blanket and grabbed my camera. Then when I said I was ready to go, he said he wanted to give me something outside before we left.

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    ''We went outside, sat down on a wooden beam lying under a light. Adam reached into a paper bag and started handing me little cardboard boxes. Paper-wrapped packages, glass jars, and little bottles. I had once told my mother at some point that good chocolate and real hot sauce were hard to find. Adam brought me eight different sauces, salsas and spicy marinades, and five boxes of chocolate truffles and mints. I was amazed and touched by his thoughtfulness. I know that he must have had more on his hands in preparing for this trip, yet he took the time to do shopping for things to cheer me up here, without knowing whether he could even find me here.''

    Adam paid a very dear price for this last act of thoughtfulness. He only slept one hour in order to be thoroughly prepared for the early day's work. Adam was the epitome of thoughtful kindness and responsibility.

    Adam was prepared to share willingly in the risk required of U.S. uniformed military personnel seeking peaceful alternatives to the slaughter in the Balkans, but neither he nor we were informed of the risk nor prepared for the loss of his life and 34 others' resulting directly from the egregious circumstances that are described in the report of the investigating committee. The navigation map showed St. John's Hill to be 200 feet lower than it was. Imagine our horror when we received this information. They smashed into the mountain blind, 70 feet below the crest.

    When people who have devoted their lives to public service have suffered, their families have been broken as a direct result of an action of our government, then that government of the people must reach out to heal that brokenness to make the people whole. Of course we can and do and have healed ourselves by faith in God, by the love of our families, and by the support of our communities; but when the loss is suffered under the authority and the responsibility of the government, the cohesion and the credibility of this representative democracy depends upon the demonstrated desire of the government to recognize and honor that loss, an earnest effective will to restore the people to health and strength, not just in words which are deeply appreciated or in symbolic acts which likewise go directly to our hearts and we are very appreciative, but in financial and material relief.

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    In no way were these victims responsible for their own untimely brutal death. Still it is we, it is they who have paid the dearest price which no amount can compensate. Let the suffering we have endured be a sufficient lesson for 3 million government employees, but let us not continue to bear the unnecessary loss without relief. Thank you very much. Please, do everything that can be done to pass this bill before us.

    Ms. JACKSON LEE. Thank you very much, Mr. Darling. You are right, we did not know your son or daughters and we thank you for allowing us this small opportunity to get to know them.

    Mr. DARLING. Thank you.

    [The prepared statement of Mr. Darling follows:]

PREPARED STATEMENT OF DARRELL W. DARLING

    Mr. Chairman, Members of the Subcommittee on Immigration and Claims:

    My name is Darrell Darling and my wife, Karen, is here with me today. Our son, Adam, was killed on April 3, 1996.

    We families of those persons killed aboard the CT–43A are deeply grateful to you for holding a hearing of HR 3295 the ''CT–43A Federal Employee Settlement Act,'' sponsored by Congressmember Sam Farr whose dedication is extraordinary. We're appreciative, Mr. Chairman, of your own recognition of the catastrophic suffering created when a citizen is innocently killed by some action of a government agency. If not for your own vigilant and tenacious advocacy on behalf of the Hernandez family, we know that the unnecessary death of a 18-year-old young man would almost certainly remain a gaping injustice to this day. H is family, with your help received justice. We hope you will likewise act favorably on our request. We have no other recourse. We come to the United States Congress because it is our sole court of appeal, our only arbiter of justice.

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    Our son, Adam, was also a young man, only 29 when he was killed with 34 others on St. John's Hill in Cilipe, Croatia. He and his coworkers are the reason for our being here today. But, of course, a single hearing is an impossibly brief time to give any real sense of the outstanding brilliance, character, and devotion of these thirty-five of our beloved family members. A story about Adam will perhaps give you a glimpse of who he was.

    Adam was one of about a dozen friends who grew up together from nursery school in Davis, California in our close knit neighborhood. Even after we moved to Santa Cruz he frequently returned to the neighborhood. These boys, now men, are a musician, stock- broker, geneticist, professional actor, photo journalist, NFL defensive lineman, attorney, industrial designer among others.

    Adam's best friend from Davis was one of the neighborhood dozen. They faithfully watched Mr. Rogers after kindergarten, rode their bikes 1,000 miles to and from Ashland, Oregon Shakespear Festival at age 15, roomed together at the University of California in Davis, and went to Germany together as Karl Duisberg Fellows, Adam in the Bundestag, Kris as a journalist.

    The last person Adam saw on this earth was his best friend's brother, stationed at Lukavac near Tuzla, Bosnia, a U.S. serviceman with the peacekeeping mission. I'm reading a portion of a letter we received from Bosnia a few days after Adam's visit, the entire letter is attached for the record.

    ''I spent several hours with Adam the day he died. He was a good friend and a fine young man, and I share your loss . . . I received a call from the Joint Information Bureau . . . one of Ron Brown's assistants had been trying to track me down for several days. Ten minutes later, Adam called . . . Imagine my surprise! I couldn't believe I was hearing from an old friend, there in the middle of Bosnia. . . . About fifteen minutes later Adam called and said he had arranged a ride to Lukavac, but could only stay for 30 minutes . . . Then, a little white truck with German license plates pulled up in the parking lot. I was expecting a four-vehicle convoy. . . . When he got close enough, I saw it was Adam. We embraced warmly. I told him that I had gotten permission to go with him . . . and invited him for the mini-tour of Lukavac Base Camp. . . . When we got to my tent, I packed a light blanket and my wet weather top, grabbed my camera . . . Then, when I said I was ready to go, he said he wanted to give me something outside before we left.

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    We went back outside, and sat down on a wooden beam lying under a light . Adam reached into a paper bag, and started handing me little cardboard boxes, paper wrapped packages, glass jars, and little bottles. I once told my mother at some point that good chocolate and real hot sauce are hard to find here. Adam brought me eight different sauces, salsas, and spicy marinades, and five boxes of chocolate truffles and mints. I was amazed and touched at his thoughtfulness. I know he must have had his hands more than full preparing for this trip, yet he took the time to do shopping for things to cheer me up here, without knowing whether he could find me here. . . .''

    Adam paid a price for this last act of thoughtfulness; he slept only one hour that night, in order to be thoroughly prepared for the early day's work. Adam was the epitome of thoughtful kindness, matched by his responsibility.

    On April 3 four years ago our son Adam was putting into practice the ideals of a family committed to public service. He was prepared to share willingly in the risk required of U.S. uniformed military personnel seeking peaceful alternatives to the slaughter in the Balkans. But neither he nor we were informed the risk nor prepared for the loss of his life and 34 other lives resulting directly from the egregious circumstances described in the report of the investigating committee, the most horrifying fact being that the navigation map, or missed approach chart, showed St. John's Hill to be 200 feet lower than it was. They smashed into the mountain blind, at 70 feet below the crest, thinking they had another 130 feet of clearance.

    When people who have devoted their lives to public service have suffered, their families have been broken as a direct result of an action of our government, then that government of the people must reach out to heal that brokenness to make the people whole. Of course, we can and do heal ourselves over time by faith in God, by the love and kindness of our families, by the support of communities, by devotion to significant tasks.

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    But when the loss is suffered under the authority and responsibility of the government, the cohesion and credibility of this representative democracy depends upon the demonstrated desire of the government to recognize and honor that loss, an earnest effective will to restore the people to health and strength not just in words but in financial and material relief. The government has to want to heal those who have been grievously injured by some action of that government, whether intentionally, negligently, or simply by benign misdirected conduct. In no way were the victims responsible for their own untimely, brutal deaths. Still, it is we who have paid the very dearest price which no amount can compensate. Let the suffering we have endured be sufficient lesson for 3,000,000 government employees. But let us not continue to bear this unnecessary loss without relief.

    .

    We are deeply appreciative of the 17 gun salute, the memorial service, the President's words of praise, the memorial dedicated to their work and sacrifice in the Commerce building, the flight to and from memorials, as well as the many condolences from their beloved colleagues in the government. We have, however, likewise made every effort to honor our family members' professional work ethic by spending days and weeks in consultations and meetings, writing correspondence and position papers at the request of governmental agencies to ensure future safety, security, and proper response of the government agencies to similar unforeseen disasters. Some recommendations of the ''White House Commission on Aviation Safety and Security'' and the ''Aviation Disaster Family Assistance Act'' (ADFAA) have been implemented in part resulting from the trauma of the CT–43 crash, providing for substantial relief and care for families similarly suffering in the future. However, many of these provisions are still not provided for victims of government air disasters, government employees on government air craft, and consequently these provisions have never been offered to our families. Among the remedies the government requires commercial airlines to provide which are not available to us are:

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Counseling services

International flight to and from the disaster site

Full disclosure of risks of flying aboard government aircraft

Objective third party investigations of mishaps

Access to any court for redress or relief from gross negligence

Guarantees of all aviation safety and navigation protocols and equipment provided through FAA

You can imagine the emotional and financial toll the lack of these remedies has taken on our family.

Immediately after the CT–43A crash, Congress raised the death benefit from $1,000 to $10,000. Regardless of the public or private status of the victims, we find the $10,000 also to be very puzzling when

$2,000,000 paid to each European family whose family member was killed in Calavese, Italy, resulting from similar lapses of safety and a faulty map;

$4,500,000 paid to the three Chinese embassy personnel killed in Belgrade, Serbia resulting from a faulty map;

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Up to $14,000,000 plus paid to each of the families of U.S. citizens who were not government employees who were killed with our son resulting from a faulty map.

    We wonder about the value this government places on human life and government service. What message of responsibility is sent by a government that claims such meager and halting financial responsibility for the care of families of 14 public servants whose whole lives were lived as the very definition of responsibility? The technical limitations of the FECA bar established nearly half a century ago to protect both employees and employers, simply is not adequate to address the magnitude of our losses and the extreme circumstances cited in the investigation committee's report.

    Passing HR 3295 would truly provide justice for all and we trust that this sub-committee will find the means to redress this rare and unusual calamity and will lead the Congress and the government to a fair and equitable compensation.

    The American people will recognize this action for the kindness and justice they expect of themselves and of their government.

    Mr. Chairman, we respectfully request that you pass HR 3295. Thank you.

    Ms. JACKSON LEE. Ms. Nora Poling, you lost a daughter, Naomi. Thank you for being here.

STATEMENT OF NORA POLING, ATTORNEY, REPRESENTING THE NAOMI P. WARBASSE FAMILY

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    Ms. POLING. My name is Nora Poling, I am the mother of Naomi Warbasse. Thank you for allowing me to give my testimony today. I also speak on behalf of my son-in-law, Jim Warbasse, who was not able to come.

    Naomi was an exceptional child. She loved God from an very early age. She excelled in school. She participated in leadership classes and she was even a varsity cheerleader. She graduated from high school after her junior year when she was only 16 years old. She then entered Johns Hopkins University. Naomi spoke fluent German. During her junior year she studied abroad in Vienna, Austria. She was witness to the fall of the Iron Curtain and the Velvet Revolution. She had a particular interest in the central and eastern part of Europe because her grandmother was born in Moscow and fled with her family at the time of the Russian Revolution.

    Naomi graduated from Hopkins with a major in international affairs at age 20. She then entered the Elliott School of International Affairs at George Washington University, her concentration in central and eastern Europe. She received a fellowship to study the Czech language at Harvard one summer. Her intellectual side was strengthened by her warm and friendly personality. This would later be evidenced by the work that she did at the Department of Commerce. In May 1993, she received her master's degree from George Washington.

    She immediately started her Federal career as an international trade specialist with CEEBIC, the Central and Eastern European Business Information Center. Her talent was quickly noticed as she participated in several White House conferences on trade and investment and was promoted to Deputy Director of CEEBIC. She introduced her office to the Internet and their work quickly expanded.

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    One of the countries she was responsible for was Croatia. So at age 24, she was the one to brief Ron Brown on that region. As her mother, I was impressed that she was briefing a Cabinet member. Her reply to me was, ''I know the Croatians.'' You just don't know a people from facts and figures but by personal involvement, and that was evidenced to me when I met the Economic Minister of Croatia at the dedication of the memorial at St. John's Hill. He told me that Naomi was the first U.S. Government employee that he worked with when he came to the States. He said she was a remarkable woman. All this, and she was only 24 years old.

    She was a brilliant, dedicated, caring person, motivated to public service like the tradition of her grandparents and her uncles. Naomi died 10 days short of her 25th birthday. If she had followed in her grandmother's footsteps, Naomi would have worked for another 50 years. By the way, Naomi's grandmother received the WISE Lifetime Achievement Award shortly before her retirement as the most outstanding woman scientist in the Federal Government. At age 75, what award would Naomi have received?

    My family has been devastated by the death of Naomi. Her husband Jim was not able to work or continue his school work for 3 1/2 years after the accident. He only recently has been able to return to his full-time master's degree studies.

    On October 31, 1994, my family suffered the loss of my brother in the crash of American Eagle flight 4184 near Roselawn, Indiana. He left a wife and eight children. In less than an 18-month time period I lost two members of my immediate family to plane crashes, first my brother and then my daughter. But compensation for their loss has been handled very differently. According to several newspaper articles, my brother's family settled along with 25 other families for $110 million in liability compensation. There were provisions for additional individual settlements also. My son-in-law as Naomi's next of kin receives a portion of Naomi's salary as long as he remains unmarried.

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    We have been talking words like fairness, inequality, justice, but I know firsthand that there is inequality in my own immediate family and also among those that were on that CT–43 flight in Croatia.

    Public servants should not be penalized. Their contribution should be honored.

    When the NTSB heard of our situation, they realized that their investigators would be in the same jeopardy as our loved ones, and NTSB now takes out an umbrella life insurance policy for all of their staff that fly on government aircraft. Instead of families of Commerce employees giving testimony today, you could be listening to the testimony from the families of members of your own staff that fly on CODELs.

    I am asking you to be fair and equitable and redress this extremely rare and unusual loss.

    As we say every time we pledge allegiance to the flag, one Nation under God, indivisible with liberty and justice for all. Thank you.

    Ms. JACKSON LEE. Thank you very much for your eloquence and unity around the singular issue of the commitment this Nation has to its proud and prideful and dynamic young people and others.

    [The prepared statement of Ms. Poling follows:]

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PREPARED STATEMENT OF NORA POLING

    Good morning. My name is Nora Poling. I am the mother of Naomi Warbasse. Thank you for allowing me to give my testimony today.

    Naomi was an exceptional child: she loved God from a very early age; she excelled in school; she participated in leadership classes; and she was even a varsity cheerleader. She graduated from high school after her junior year when she was only 16 years old. She then entered Johns Hopkins University. Naomi spoke fluent German. During her junior year she studied abroad in Vienna, Austria. She was witness to the fall of the Iron Curtain and to The Velvet Revolution. She had a particular interest in the central and eastern part of Europe because her grandmother was born in Moscow and fled with her family at the time of the Russian Revolution. Naomi graduated from Hopkins with a major in international affairs at age 20.

    She then entered the Elliott School of International Affairs at George Washington University. Her area of concentration was Central and Eastern Europe. She received a fellowship to study the Czech language at Harvard one summer. Her intellectual side was strengthened by her warm and friendly personality. This would later be evidenced by the work she did at the Department of Commerce. In May, 1993, she received her master's degree.

    She immediately started her federal career as an international trade specialist with CEEBIC (Central and Eastern European Business Information Center). Her talent was quickly noticed as she participated in organizing several White House Conferences on Trade and Investment—and she was promoted to Deputy Director of CEEBIC. She introduced her office to the internet and their work quickly expanded.

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    One of the countries she was responsible for was Croatia. So at age 24, she was the one to brief Ron Brown on that region. As her mother, I was impressed that she was briefing a cabinet member. Her reply to me was ''I know the Croatians''. You don't know a people from just facts and figures but by personal involvement. This was evidenced to me when I met the Economic Minister of Croatia at the dedication of the memorial at St. John's Hill. He told me that Naomi was the first U.S. government employee he worked with when he came to the states. He said she was a remarkable woman. All this and she was only 24 years old.

    She was a brilliant, dedicated, caring person—motivated to public service like the tradition of her grandparents and her uncles. Naomi died 10 days short of her 25th birthday. If she had followed in her grandmother's footsteps and retired at age 75—Naomi would have worked for another 50 years. By the way, Naomi's grandmother received the WISE Lifetime Achievement Award shortly before her retirement, as ''The Most Outstanding Woman Scientist in the Federal Government''. At age 75 what award would Naomi have received?

    My family has been devastated by the death of Naomi. Her husband Jim was not able to work or continue his school work for 3 1/2 years after the accident. He only recently has been able to return to his full time master's degree studies.

    On October 31, 1994, my family suffered the loss of my brother in the crash of American Eagle Flight 4184 near Roselawn, IN. He left a wife and 8 children. In less than an 18 month time period I lost two members of my immediate family to plane crashes, my brother and my daughter. But compensation for their loss has been handled very differently. My brother's family settled along with 25 other families for $110 million in liability compensation. There were provisions for additional individual settlements also. My son-in-law receives a portion of Naomi's salary as long as he remains unmarried.

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    Not only is there an inequality in my own immediate family, but also among those on the CT–43 flight in Croatia.

    Public servants shouldn't be penalized. Their contribution should be honored.

    When the NTSB heard of our situation—they realized that their investigators would be in the same jeopardy as our loved ones are. The NTSB now takes out an umbrella life insurance policy for all their staff that fly on government aircraft.

    Instead of the families of Commerce employees, you could be listening to the testimony from the families of members of your staff that fly on CoDels.

    I am asking you to be fair and equitable and redress this extremely rare and unusual loss.

    As we say every time we pledge allegiance to the flag—''One Nation under God, indivisible, with liberty and JUSTICE for all''.

    Thank you.

    Ms. JACKSON LEE. Let me ask all three of you a question, and I am delighted my colleague, Congresswoman Lofgren, is here.

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    In the briefings that you received from Federal authorities, was there any suggestion of any kind that your loved ones contributed to their death?

    Mr. DOBERT. None.

    Mrs. DOBERT. Absolutely none.

    Mr. DARLING. None.

    Ms. POLING. No, not at all.

    Ms. JACKSON LEE. If you would restate—Mr. Darling, I believe, mentioned one of the egregious findings, and that is an incorrect map. Did you note that for us?

    Mr. DARLING. That's correct.

    Ms. JACKSON LEE. The incorrect map had a mountain that in actuality was 200 feet shorter than the actual mountain?

    Mr. DARLING. That is exactly right. The map showed the mountain to be 200 feet lower than it actually was. They thought that they had 130 feet clearance.

    Ms. JACKSON LEE. So the point of impact was how far down from the crest?

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    Mr. DARLING. Approximately 70 feet below the crest.

    Ms. JACKSON LEE. Why did you feel the necessity, because you heard the testimony of the Department of Justice and in fact their statement includes a whole litany of options of relief, why did you seek a legislative approach in terms of making each of you whole?

    Mr. DARLING. Well, we have worked with the administrative branch and the regulatory side for a number of years, particularly the Doberts have spent 4 years, they have been working consistently for 4 years off and on getting changes to the—in safety regulations, and have been successful in attaining some of those.

    We have likewise worked for the past 3 1/2 years in attaining other remedies that would be accessible, wouldn't provide simply economic compensation, but would provide means by which government employees and others could seek redress and correct the lack of safety. So we have been working at it for a long time. This is our only, our absolutely final court of law. We have no court of law that we have any access to for seeking remedies.

    Mr. DOBERT. As Congressman Farr pointed out, you are the only recourse that we have.

    Mr. DARLING. We don't want to make undue comparisons, but when you look at the aggregate of $95 million that was paid to a community of 14 families who are in the private sector—13, pardon me, who are in the private sector and the total almost $100 million, and a comparable 14 members of the public sector are paid an aggregate of approximately $2 million, 50 to 1 is just an incredible inequity.

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    However, the comparison, when you are making any kind of comparisons, we should compare it in the other direction because those private sector families have deserved absolutely every dime that they have received. If this were other than a government aircraft, if this crash were in the private sector, on a commercial carrier, they would have received settlements far in excess of even the $100 million or $95 million which they did receive.

    Ms. JACKSON LEE. Thank you very much. My last question, and then I yield to Ms. Lofgren.

    H.R. 1371, the legislative initiative by Congresswoman Norton, seems to answer the larger question. The immediate question is relief for the tragedies that you have experienced, but I think I heard you saying there was no place else for you to go. You couldn't go into court or you would have. I don't want to put words in your mouth. You had no administrative relief. You worked, apparently, for a number of years? You had nowhere to go and the courts were foreclosed to you or are foreclosed to you?

    Mr. DARLING. That's correct.

    Ms. JACKSON LEE. So long range, without some response like 1371 to give relief to families, is that something that would warrant consideration by this body?

    Mr. DARLING. Absolutely.

    Mr. DOBERT. Congresswoman Norton introduced the bill originally in the 105th Congress, and we picked it up by chance and said it was there and said hey, this is us. Somebody has done something that we were not aware of. We worked through that entire session of Congress trying to get cosponsors and trying to get a hearing on her bill. We were advised that we should seek a straight compensation bill, that that would be much easier perhaps than her bill, although I would agree her bill would certainly satisfy our need for at least our day in court.

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    Ms. JACKSON LEE. Thank you. Congresswoman Lofgren.

    Ms. LOFGREN. First, I would like to thank this panel for their willingness to come and talk to us today. I can't imagine anything worse than losing a child. It is unimaginable to me as a parent and it cannot be easy for any of you to be here today and to help us understand the need for this legislation by putting a human face and sharing the pain that you feel with us. So thank you for you that.

    Secondarily, clearly Mr. Farr's bill is a prudent response to what has occurred here and I am hopeful with the White House support we will be able to move that bill along quite promptly.

    I am also mindful that Congresswoman Norton's bill is a necessary response as well. We are fortunate that Congressman Farr is very accessible to his constituents and listens and cares and we like to think that every Member of Congress is that way, but there is something that is inherently uncomfortable that the remedy really relates to whether individuals have the good fortune to have somebody that is as accessible as Congressman Farr as their representative, and there is something inherently out of the due process norm by handling such matters with private bills and individual approaches.

    I look forward to working with the Congresswoman on her more dramatic remedy. I think our thanks are due to the Chairman of the committee for scheduling this hearing. In deference to the trauma that you have already undergone, I will ask no further questions and just thank you very much.

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    Mr. DARLING. Madam Chair, if I may just acknowledge, with your permission, other family members who are present.

    Ms. JACKSON LEE. Please do.

    Mr. DARLING. Would you please stand?

    As they are standing, I want to say thank you to Chairman Smith and Congresswoman Holmes Norton and Congressman Sam Farr and Representative Lofgren. What you said about my own Congressman, it is true, he is a true champion from the very beginning.

    The only thing, the only thing that makes us—that drives us, frankly, is the only good that can come out of this crash, and that is that we stay in the trenches and continue to work on behalf of all the families who are here, on behalf of all of the families who for all kinds of reasons cannot find it in themselves to come here but who continue to suffer; and even more importantly than that, because we have suffered our loss, we want to do everything that we can to make sure that this does not happen again, that no other family has to sit in this place. Thank you very much. You have been kind.

    Ms. JACKSON LEE. Thank you, and I thank the Congresswoman for her questions and comments. And again let me add my appreciation for your courage not only in coming here today, but as well in pressing the point and in pressing a very powerful government, even though it is your government, it represents you. It is the people's government. But to know Gail and Adam and Naomi was particularly special for us and the record that you have made here today.

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    I want to thank as well the persistence of Congressman Sam Farr. In his side bar conversations with me and on the floor, he was singular in his view that we needed to get this hearing. But more importantly, this legislation needs to pass. And I am again—I will add my thanks to the Chairman that I work with that we have had this hearing, and please note that his absence is because of a meeting that he could not reschedule.

    We also thank Congresswoman Norton who saw the global picture, and I believe that we will get to the point where the Department of Justice will as well see ways to effectuate a positive change. But if we understand these stories to be real human beings with life that was snuffed out in the early part of their lives and other family members who are not here today who have suffered a loss, then I think this legislation will move more quickly than we could ever imagine. Let us hope so and I thank you very much for your testimony today. This hearing is now adjourned.

    [Whereupon, at 1:06 p.m., the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record

PREPARED STATEMENT OF HON. PETER KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Mr. Chairman, I thank you for holding this hearing today and want to express my strong support for H.R. 3295. On April 3, 1996 Commerce Secretary Ron Brown, Gail Dobert and 33 other individuals lost their lives when the CT–43 plane in which they were traveling crashed into a mountainside in Dubrovnik, Croatia. Fourteen of the victims, including Gail Dobert, were civilian federal employees involved in a trade mission in Croatia. Current law allows the families of these 14 individuals to receive $10,000 each and prohibits any suits against the federal government for additional compensation. To correct this, and because non-government personnel have already received settlements from the Air Force, H.R. 3295 would provide a one-time, lump-sum compensatory payment of $2 million (per victim) to the survivors of the civilian federal employees . Because other forums provide no recourse for these families, this legislation is the only means of compensation. Restitution is the right thing to do. These were government employees, traveling on government aircraft, furthering the interests of the U.S. government. Yet, our government has not compensated these families for their loss. Mr. Chairman, I ask that in the interests of fairness and justice, please support H.R. 3295.

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PREPARED STATEMENT OF SHERRY ROLEY

    My name is Sherry Foley. I had a loved one on the ill fated flight that crashed on April 3, 1996, in Croatia. Although my loved one was military and not a Federal Civilian, this bill will not reflect on my family. In the future I feel as though it will have some impact for generation to come, if needed.

    July of 1996, I met several of the families of this tragedy in a meeting that was held in DC. I was very shocked to hear that some of the parents had to buy their children with their own money (parents money). This was due to the lack of insurance funds. Their children or spouse died on a military aircraft and that bypassed their insurance funds due them. Can you imagine first dealing with the shock of losing your child or spouse? Second, waiting for their body to be brought back from a foreign country . . . maybe getting to view it, maybe not? Third having to go through their remains . . . claiming what was theirs on the plane? Then while you are still numb from all of the above . . . finding out that there is no insurance money coming to pay for the burial of your child/spouse while they were doing their job or finding out that you only have a much lesser fund coming to you and you have to pay for the expenses and have children to raise? Bills do not stop, lives do not stop due to a tragic accident . . . life goes on and so do the express. I will not forget that one parent who had a daughter on this flight had to pay for her burial expense. Her death or burial was around her birthday . . . this was their gift to her . . . paying her burial expense, there was no other choice, she was not married and this accident affected her insurance policy.

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I know that the United States in the past has paid other foreign countries certain amounts for deaths that occurred in a foreign country due to the US fault. Some amounts were probably more than what these families are asking for. These are American citizens asking the United States for a certain amount due to this crash. Our own people who were doing their job . . . trusting that when they stepped foot on this aircraft that it was safe, and up to-date. After all, this was the military, USAF, aren't our soldiers in safe vehicles with up-to-date equipment? I thought so also, but this was not so with this aircraft. This could happen to any official working in the government. Before you step foot in any military aircraft . . . what would happen to your family if your vehicle should crash or wreak? Would your family be able to survive on half of a insurance policy or would they even be entitled to their policy amount? Would there be family to bury you? Will your children be able to go to college? Who will pay the mortgage payments? Would you spouse have to go to work or and two jobs to make ends meet? These people, our loved ones were not expecting to die that day of April 3rd, 1996, their families were expecting them home. My family was not expecting the military to come to our door and tell us the news or leaving a message on our answering machine telling us to call them. Is your family prepared financially if the should happen to you? I pray to God that it will never happen again, but since this crash, there has been others (military) . . . maybe not with Federal Civilians on board, but the chances are there, especially if you have to travel an any military aircraft, I realize you take chances traveling in your own vehicle, but at least your family would be entitled to your life insurance.

Our CT–43 family had no one to offer us counseling to overcome such a shock of our loss. At our DC meeting in July, 1996, we met to ask questions with the military about this crash. One lady was asking questions, which most of her questions we all had, but she was told to sit down and let others ask questions. She had the same questions . . . which most of them were not being answered. She told them not to dismiss her, she demanded answers. We were all shocked with the abrupt behavior from this person with the military toward her. I hope that in the future, should there be another tragedy like ours, there will be a grieving counselor for each family and there will be compensation for the Civilian Federal Employees family.

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    If the Department of Defense is going to provide a taxi service, why couldn't there be it disclaimer statement saying that if you got on board this military aircraft and there is an accident, your insurance policy may not pay or pay in full? These people did not know this. If the D.O.D. is going to shuttle people around they (the civilians family) should be entitled to funds if there is a tragedy. People who shuttle around on commercial airlines are entitled to a settlement should there be a crash.



PREPARED STATEMENT OF HON. CHRISTOPHER SHAYS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CONNECTICUT

    Chairman Smith and ranking member Jackson Lee, I am pleased to submit the following statement in support of H.R. 3295, a bill to provide for compensation to the families of federal employees who were killed aboard a US Air Force CT–43A aircraft in April 1996 near Dubrovnik, Croatia.

    The days December 21, 1988, April 3, 1996, July 17, 1996, October 31, 1999, and January 31, 2000 have one tragic thing in common. On these dates, actions by the proprietors of aircraft—whether they be security lapses, insufficient maintenance or other factors—caused the deaths of numerous innocent people.

    In one notable way, however, April 3, 1996 is the odd one out. Whereas the families of the victims in the other four disasters could go to the courts in search of compensation, those who lost their loved ones on April 3, 1996 could not. This is because the airlines in the other four disasters—Pan Am, TWA, Egypt Air and Alaska Airlines respectively—are private companies and the plane which crashed on April 3, 1996 was owned by the United States government.

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    Congressman Sam Farr's bill, H.R. 3295, rectifies this inequity. It provides a one- time, lump-sum compensatory payment of $2 million per victim to the survivors of the civilian federal employees who were aboard that fateful flight in Croatia. The families of the federal employees who died that day are prevented from seeking compensation through the courts by the Federal Employees Compensation Act. As a result, I feel it is necessary that Congress, which is the only branch that can help these people, do so.

    Compensation is clearly appropriate in this case. The crash was the result of Air Force negligence. The post-crash investigation found deliberate violation in the chain of command that allowed the airplane to fly the day of the crash, numerous safety deficiencies on the airplane, and considerable aircrew error. The maps provided to the crew on the plane were also grossly inaccurate.

    Two of the victims that day, Robert E. Donovan and Claudio Elia, were constituents of mine. Fortunately, because they were private citizens, their loved ones have received some compensation for their deaths. The families of the federal employees aboard the plane, of course, were victims of the same mistakes. At the moment, because of the rather arbitrary nature of existing law, they cannot be compensated for their loss. This must be changed.

    For most Americans, the fateful flight that is the subject of this bill is best remembered as the event that took the life of Secretary of Commerce, Ron Brown. But, 33 other people also tragically lost their lives that day. It is time we recognize the federal employees aboard the plane by fairly compensating their families.

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I hope your subcommittee will support this important legislation. It is about time we helped ease the pain caused by this tragedy.

Atlanta, GA, June 1, 2000.

Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration & Claims,
Committee on the Judiciary,
Washington, DC.

DEAR CONGRESSMAN SMITH: As one of the families of the CT–43A, my husband, Dr. Joseph I. Hoffman and I are imploring you and your committee to recommend the passing of HR 3295. We are also requesting that this letter serve as testimony and be entered into the records of this hearing held on June 8, 2000.

As you already know, thirty-five people were killed in the crash of Air Force CT–43A in Dubrovnik, Croatia almost four years ago on April 3, 1996. We lost a beautiful and kind daughter who was 34 years old. Kathryn Hoffman was not only a beautiful woman, physically and spiritually, but possessed an intelligence and commitment that is rarely seen. She was a public servant with so much promise. Kathy was committed to the ideals of our country and government, and worked diligently in her position as Special Assistant to the Secretary, Ron Brown, to insure that trade initiatives such as those involved in the Bosnian trip would provide hope and instill economic goodwill to the people of Croatia. Although she worked long hours, often 14 hours a day for many successive days, she was always positive about the difference that her boss, Secretary Ron Brown, and the Commerce Department were making in the world.

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    Kathy was not scheduled to be on that flight. She had literally just returned from a long African Trade mission. She actually was asked to replace another staff member at the last minute. Instead of begging out or feigning illness as many would have done, she realized the importance of the mission and went. She left not only us, but her mother, Jane Davenport, and her two younger sisters, Kristen and Kara. They worshipped their big sister and were left with nothing but memories and Kathy's two dogs, Max and Beau who we still have. Our entire family has spent the last four years recovering from the shock of losing her. Each holiday, birthday, news of another plane crash has been agonizing to us. Kathy's death devastated our family requiring professional counseling for both of her sisters, and her dad to slump into a long depression. Even her dogs were depressed, biting anyone who approached them. I just tried to keep my family sane and together.

    Congressman Smith, we commend your fairness and know that you were integral in helping the family of the sheepherder who was accidentally shot by an American serviceman. We also know that our government provided compensation to the Italian families of the skiers killed by the accident caused by our airforcemen. We ask why wouldn't the 12 families of U.S. public servants receive the same consideration as the sheepherders family or the Italian families? All of the government employees on that plane were bright, dedicated, young public servants and rising stars and their families were left in distress and pain.

    For the past four years, CT–43A family members who lost loved ones on St. John's Mountain, have been encouraging passage of this legislation that would:

1. Eliminate financial inequities for the families of those government employees killed on the CT–43A, some of whom are under serious financial stress resulting directly from the crash, by granting financial relief which is not exorbitant but is fair and just and conforms with precedents. (S.1957)

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2. Ensure that all safety protocols and equipment the U.S. Government requires for commercial airlines and their aircraft are also required and provided for government aircraft.

The 13 families of victims from the private sector have already received up to 14 million per family from the Military Claims Act.

The $2 million amount which we believe is fair, was determined by three considerations:

1. Department of Transportation (FAA) has calculated the Cost Avoidance figure for each airline passenger is $2.7 million (see Federal Register, April 19, 1999)

2. The Italian and German governments have concurred that $2 million is the amount they will seek and/or provide for losses in very similar circumstances for each victim. This amount conforms with Senator Robb's 1999 Amendment to the Emergency Military Appropriations Bill for families of the Calavese gondola victims.

3. $2 million is the low end of the claim settlements received by private sector families of the CT–43A crash victims.

As you may be aware, this crash was unique in several respects. Secretary Ron Brown was the first cabinet level officer in U.S. History to be killed in the line of duty on foreign soil, perhaps the only one anywhere. The mission was unique in that a combination of public and private employees were willing to fly into a destabilized and war torn area to contribute to the economic recovery and rebuilding of the infrastructure necessary for normalization and democratic governance.

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Congressman Smith, you have always been a fair and ardent supporter of the rights of citizens in general. We urge your fair consideration and support in this urgent matter.

Respectfully,

Pam and Joe Hoffman.

66212D.eps

66212E.eps

June 4, 2000.

Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.

DEAR MR. LAMAR SMITH:: Our daughter was killed in the tragic crash of an Air Force CT–43. We respectfully request that this letter be entered into subcommittee testimony on H.R. 3295.

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    KATHRYN ELISE KELLOGG was a significant person. We, her parents, loved her very much and greatly miss her. She believed her work in government was a service to her country, in this instance by building trade and providing economic assistance to Bosnia-Hcrzegovina and Croatia to bring lasting peace. She is dead because Air Force commanders failed to follow orders (even after a requested waiver was denied, commanders authorized the flight without the required approach procedure review), aircrew errors and in improperly designed instrument approach procedure.

    After graduation from Biola University with a Bachelor of Science Degree in Public Administration and working briefly on a campaign staff, Kathryn became Scheduler for the Honorable Senator John D. Rockefeller TV from 1989 to 1993. In 1993 she was appointed a Confidential Assistant in the Office of Business Liaison, Office of the Secretary, U.S. Department of Commerce. Upon completion of the Trade Mission on which she was killed, she was to begin working for a private concern in Washington, DC. She was given important positions because of her competence, intellect, dedication and work ethic. She moved to higher levels of responsibility quickly and had a bright future in her work had her life not been cut short at such an early age.

    Kathy Kellogg was best known for the deep relationships she built with friends and family; she invested her life in people. She had a deep faith in God, a keen intellect and a sharp wit. Kathy worked hard and gave her best at work, when volunteering with the underprivileged and with teens in her church. She knew that what was most important—that which was eternal—was her relationships with God, her family and her friends.

    As her parents, our loss is immeasurable. Not a day goes by that we don't think about her and miss her. Even four years later, the emotional aspect of our loss overwhelms us at times. On the number of occasions we have been in Washington since her death, our arrival is without the cheerful greeting we had looked forward to in the past. We miss weekly telephone calls to find out what had been happening with her the previous week. Kathy once asked if we might like to move to near her after retirement; I will retire a year from now, but that prospect is gone. Listening to our friends talk about their grandchildren is, to say the least, difficult.

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The initial response to our loss by the administration and our legislative representatives was helpful and gracious. The Air Force response was considerably less so. The commanders were reassigned, but hardly punished. While the investigation assigned responsibility for the tragedy, the Air Force has accepted no financial responsibility. Few changes have been made to keep this from happening again to any government employee or elected official on a similar flight. Here we are coming to you four years later after much effort on the part of affected family and spouses seeking recognition of our loss and hopeful that such recognition will help to keep others from having to experience similar losses.

Thank you for your consideration. We hope that H.R. 3295 will move forward.

Sincerely,

Michael Kellogg,

Charlotte Kellogg.

June 1, 2000.

Hon. LAMAR SMITH, Chairman,
Subommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.

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    DEAR SIR: We are the parents of the late Paul Cushman III, our only son, who was killed on April 3, 1996 in the crash of the ill-fated CT43 United States Air Force plane. As we all now know this plane was not properly equipped to make a landing into Dubrovnik airport, nor were the pilots sufficiently briefed on the challenges of flying this mission—radar and landing issues in particular.

    Thus, we live not only with the grief of the loss of our son whose death was needless, and out of order, but also with the knowledge that the crash could, and should, have been averted.

    It is a great tribute to the diligence and perseverance of the victims' families, so ably led by Darrell Darling and Ken Dobert, that a hearing on this tragedy has finally been scheduled—4 years after the disaster. Let us hope that by the time we reach the 5th anniversary of April 3, some fair and just compensation will have been made to the families. To date, this has not been the case.

    The unusual circumstances, i.e. a major U.S. Air Force-caused disaster, in a foreign territory, set in motion proceedings under the Wrongful Death Act. The Air Force, in its sole discretion, without any possible judicial process or review, has made a minuscule award to this grieving family. Our son, aged 35, was an up and coming banker, C.E.O. of Riggs International, who had already accrued special expertise in his field and won accolades for his acumen in devising and negotiating financial assistance to countries world wide—he had been on 3 missions to Croatia before the crash and was specifically requested for this mission by the late secretary of Commerce, Ron Brown.

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    For the loss of a person age 35 years, well placed in his business setting, earning about $200,000 yearly the arbitrary award decided upon by the Air Force was less than $300,000. Paul had a 30 year business life expectancy before reaching retirement age of 65. Even assuming no advanments his salary or status, a reasonable person might presume his total earnings to be $6,000,000.

    It is clear that in this case, the existing statute's and judicial precedents do not address the issue of loss of life or adequate compensation with the degree of justice and fairness which they deserve.

    We have been in touch with Congressman Charles Rangel, and Senators Charles Schumer, Alfonse D'Amato, and Daniel Moynahan on this matter in the past, and enclose a copy of our letter to them.

    As we are unable to travel to Washington DC on June 8 to give our testimony at the hearing, we are sending this letter in our place, to register our very strong support of the bill HR 3295. We trust that you will lose no time in correcting the miscarriage of judicial fairness and arrange for adequate compensation to be dispensed to every family of the victims of this crash, including the families of the 2 Croatians, victims that President Clinton declared to be heroes who died in the service of their country.

Sincerely yours,

Paul and Paulette Cushman.

CC:

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Darrel Darling



PREPARED STATEMENT OF LUTHER JACKSON

    My brother, Lee Jackson, was one of the courageous and compassionate American patriots who did in the crash of Air Force flight CT–43A in Croatia on April 3, 1996.

    Lee's death was a major blow to his family, friends, the American people and to the residents of Eastern Europe struggling to make the transition from Communism to Capitalism.

    As U. S. Director for the European Bank for Reconstruction and Development, Lee represented his country in a noble fashion as he worked with dignity to further his nation's interests while strengthening the bank.

    Lee was truly a man for all seasons who combined a compelling intellect and brilliant technical skills with a sparkling personality, friendly manner and easy smile.

    Said Bank president Jacques de Larosiere: ''Lee was a man of ideas, of courage and of grace. He knew the art of presenting strong views in a way that was always constructive, positive, pleasant, concise and convincing.''

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    At age 37, Lee's career at the bank and on the world stage was only beginning.

    As much as Lee's death was a loss to the world community, his passing is most deeply felt by his family and hundreds of people who could honestly call him a close friend.

    There is hardly a day that passes where I don't think about Lee and his positive impact on me. We were best friends and soul-mates.

    As a true believer in the concept of human solidarity, Lee worked through his magnetic personality to unite people. He never made distinctions based on race, ethnicity or religion. He practiced fairness, integrity and compassion.

    I will never forget the joy he would bring to our family home in Hartsdale, New York, when he would come bounding into the house with exuberant tales of his travels throughout Europe, Africa, South America and Asia.

    Lee's death has created such a huge void in my life and the lives of his parents Nettie and Luther Jackson, my wife Cecilia and his two beloved nephews Alexander Lee and Martin Lee Jackson.

    We are thankful to have his memory and thoughts of his positive and uplifting personality to bolster us during these days of loss.

    The Jackson family is appreciative of efforts the U. S. government has made to family members of those who have died in service to their country.

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    We are further thankful for the Subcommittee's recognition of the need for Congress to address the issues of fairness, justice and equity raised by the crash of CT–43A.

    Thank you for your compassion and leadership and your willingness to consider approving the CT–43A Federal Employees Family Settlement Act.



66212A.eps

66212B.eps

66212C.eps

Pearland, TX, May 30, 2000.

Hon. THOMAS DELAY,
House of Representatives, Washington, DC.

DEAR CONGRESSMAN DELAY: It is my understanding that the Subcommittee on Immigration and Claims under the direction of Chairman Lamar S. Smith, a subcommittee under the Committee on the Judiciary, has finally after four years decided to hear or discuss HR 3295 on June 8, 2000, at 10:00AM. Hopefully, you are aware that this bill put forth by Congressman Farr is to gain approval for fair and equitable settlement for the 14 federal employees killed in the crash of CT–43 along with my brother, P. Stuart Tholan, who worked for Bechtel.

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    The previous two letters that I sent you describing in some detail several aspects of this crash have unfortunately and unexplainably received no response from you or your office. As my elected representative I expect and demand an appropriate response to the only correspondence I have ever sent to my representative. I have enclosed copies of that correspondence and would request some official response on exactly how you stand with regard to this issue and others issues relating to safety on government aircraft. With the federal government getting into every aspect of our lives from the gas pump to family leave it is about time we take care of those who lost their lives in the service of their country. Please note that this letter is being written on Memorial Day.

    I am trying to arrange my schedule so that I will be able to attend the hearings, however, in the event that I can not, I would respectfully request that this letter and the attached correspondence be entered into the official testimony. If you can not personally attend the hearing, I would appreciate that you make every effort on my behalf to insure that this happens. In my opinion, it is just as important to represent your individual constituents in situations like this as it is to appear on the Sunday morning TV talk shows.

    I will not receive any monetary remuneration from the passage of this bill. It demands passage because it is the correct and right thing to do. Let's forget about all the posturing and other ''stuff' that goes on in Congress and get on with it!

Sincerely,

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Kenneth M. Tholan.

Enclosures

Cc:

Congressman Smith
Congressman Hyde
Members and Chief of Staff of the Immigration and Claims Subcommittee
Darrel Darling

Pearland, TX, April 22, 2000.

Hon. THOMAS DELAY, Representative,
Committee on the Judiciary,
House of Representatives, Washington, DC.

DEAR CONGRESSMAN DELAY: I have recently returned from the Balkans Trade Mission Memorial Unveiling Ceremony held at the Commerce Department on the fourth anniversary of the crash of CT–43. My brother, P. Stuart Tholan, was killed in that crash along with Ron Brown and 33 others. I have, attached various background information for your review,

My feeling from the very beginning of the investigation was that it was an absolute false promise to believe that the Air Force could fairly, honestly, and impartially investigate the Air Force. The CT–43 crash was caused by deliberate violation of the chain of command, airplane safety deficiencies, improperly designed instrument approach procedure, and aircrew error.

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    I am not aware of the amount of negotiated settlement my brother's family received from the government and his employer, Bechtel, but I believe it to have been fair, However, I am writing to request your support on several pending House Bills (HR 3295 and HR 1371) in support of the 14 federal employees who have no recourse other than the totally inadequate and limited Federal Employee Compensation Act (FECA). Given the admitted total culpability of Air Force these employees deserve better treatment from their government.

    It is my understanding that there is other legislation ongoing that will put policies in place to see that military aircraft will be held to the same rigid standards as civilian aircraft. Also, I have been told that the. Congress is ''dragging its feet'' on this issue. In the long run this legislation is probably more critical than support for increased compensation for the federal employees . . . this accident should not have happened and we should take measures to insure that a singular accident cannot happen in the future. When we ask civilian or federal employees to travel on military flights in support of their country's policies, we must absolutely insure a safety program that would meet FAA standards.

    As a further insult, most of the sponsors of proposed bills are ''those, love to hate liberal Democrats.'' This is not a partisan issue and as my elected Congressman I request your support for these programs.

Sincerely,

Kenneth M. Tholan.

Enclosures

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Cc:

Darrel Darling.

Pearland, TX, May 14, 2000.

Hon. WILLIAM M. DALEY,
Secretary of Commerce,
United States Department of Commerce,
Washington, DC.

DEAR SECRETARY DALEY: I have recently returned from a visit to Washington, D.C., to attend the 36th reunion of the officers who served aboard the USS HISSEM (DER 400) in OPERATION DEEPFREEZE in 1963–1964. During our stop at the U.S. Navy Memorial, Saturday, May 6th, my wife and I walked down to the Commerce Department to take pictures of the Balkans Trade Mission Memorial. We had recently attended the dedication of the Memorial of the crash in which my brother, P. Stuart Tholan, was killed.

The banner over the entrance to the lobby indicated ''National Tourism Week,'' the lobby was open, and there appeared to be a sign-in log at the desk inside. The guard stated rather strongly that if we wanted the aquarium it was down at the next entrance. I asked the guard at the desk, Woodrow Johnson, if I could take some pictures of the memorial and he indicated, again in a very agitated, condescending, and abrupt tone that the Commerce Department was closed on Saturday and Sunday. As you are aware, the Memorial is in immediate eyesight and only 15 or 20 feet away, directly inside the metal detector. I indicated that my brother had been killed in the crash and I just wanted the opportunity to take some pictures. He then replied, ''I am not going to tell you again, the Commerce Department is closed on Saturday and Sunday!'' It definitely appeared to my wife and I that he was actually trying to be confrontational and cause an incident . . . it was very obvious that he was challenging me to take an aggressive act so that he could respond in some manner. My initial reaction was, ''who the hell does this guy think he is!''

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    Rather than causing an incident, I turned to walk out of the lobby and Mr. Johnson started to ''snicker and laugh'' while making comments to a gentleman who was signing the log. I turned and said, ''what did I say that was so funny . . . did you find something that I said funny?'' He responded, ''I am a grown man, 62 years old, and I can say or do anything I want to.'' To be honest, I really wanted to go over the desk after him, but I turned and walked out of the lobby. Once outside I decided to return and get his name and he indicated his name was Woodrow Johnson.

    I believe that his conduct was inconsiderate, discourteous, disrespectful, and extremely unprofessional. This is certainly not the conduct that you should expect or, more importantly, should demand of your employees representing the Commerce Department. I believe that we forget sometimes that all government employees have some responsibility to those they represent and should act accordingly. If procedures allow, I believe that Mr. Johnson should be terminated or, at least, strongly disciplined. I would appreciate an investigation of this incident and a written response detailing what action has been taken along with an apology.

    As a separate subject, it was my understanding the Balkans Trade Mission Memorial was to be available 24 hours a day in the lobby of the Commerce Building. This obviously does not appear to be the case. If the outside public can not view the Memorial during non-business hours and the weekends it losses much of the intended value to the families and friends of those most impacted by the crash. In conversation during the Memorial ceremony, I heard discussion concerning the permanent location of the Monument and I realize that you can not make everybody happy, however making it available only on an eight to five basis does not appear to make sense.

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While my brother was not a federal employee, he worked for Bechtel, I have recently sent several letters in behalf of the federal employees whose family members did not receive a fair and equitable settlement and have received no response. I would request that this letter receive the appropriate attention that it deserves.

Sincerely,

Kenneth M. Tholan.

CC:

Senator Kay Bailey Hutchison
Senator Phil Gramm
Congressman Thomas DeLay
Marilyn B.Tholan
John J. Phelan
Carol Hayashida
Darrell Darling



PREPARED STATEMENT OF HANS EPHRAIMSON-ABT ON BEHALF OF THE AIR CRASH VICTIMS FAMILIES GROUP

    Mr. Chairman:

    We submit this written testimony in favor of H.R.3295, the CT–43A Federal Employee Settlement Act introduced on November 10, 1999 urging you and the members of your Committee to give speedy and favorable consideration to the legislation before you.

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    This bill is designed to repair an inequity concerning damages denied to the families of Federal civilian officers and employees who perished on April 3, 1996 when a plane provided by the Department of Defense crashed into a mountainside near Dubrovnik, Croatia with the loss of all of its thirty-five passengers and crew.

    While the families of thirteen private sector passengers were able to be awarded reasonable compensation, the limitations under prevailing statutes deprived the families of fourteen Federal civilian officers and employees the same-equitable treatment. HR 3295 is designed to correct this inequity.

    We all owe our gratitude to the Federal civilian officers and employees who risk their lives in fulfilling their duties to our country with great dedication. They are under obligation of their jobs to travel in strife and war torn territories. They, and their families should be entitled to the same benefits and damages in case of their untimely death as are the passengers—and their families—of the private citizens traveling with them on the same flight. It should be repugnant that the air traveler who become united in death leave their surviving loved ones divided and discriminated in their damages rights.

    The responsibilities of the Department of Defense in the aftermath of two other tragedies have already been addressed in two recent tragedies:

1. The February 3, 1998 incident near Cavalese, Italy, when a US Marine Corps EA–6B aircraft severed the cables of a ski lift resulting in numerous fatalities. The United States Government reimbursed the Italian Government for damages awarded by the Italian Parliament to the victims families,

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2. The September 13, 1997 collision between a German Tupolev TU–I54M aircraft with a US Air Force C–141 Starlifter aircraft of the coast of Namibia (Africa) with the loss of nine members of the US Air Force. The Defense Department negotiated with the German Government an ''ex gratia'' arrangement for damages.

    Both incidents resulted in damages commensurate with those sought in H.R. 3295—the legislation before you.

    The surviving CT–43 families should certainly be entitled to the same treatment as those cited in the above tragedies.

    For the last seventeen years Congress has been conscious and helpful in correcting the inequities which exist in the treatment of air traveler in passing legislation such as the recent ''Death On ''The High Seas Act amendment to H.R. 1000 Sec. 404'', the ''Aviation Disaster Families Assistance Acts of 1996 and 1997'', the ''Aviation Security Improvement Act of 1990'' and others. It is therefore high time that Federal employees and their families also be entitled to the same damages as are their civilian cotravelers.

    Mr. Chairman, we respectfully request that our written testimony be made part of the records of the Hearing, and be circulated among the members of your Committee



PREPARED STATEMENT OF WILLIAM FLYNN, III

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    MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:

    THANK YOU FOR YOUR INVITATION TO PROVIDE INFORMATION REGARDING THE BENEFITS PRESENTLY AVAILABLE TO THE FAMILIES OF FEDERAL EMPLOYEES WHO ARE KILLED ON DUTY IN AIRCRAFT ACCIDENTS.

    THE OFFICE OF PERSONNEL MANAGEMENT HAS A BROCHURE TO PROVIDE A SUMMARY OF BENEFITS APPLICABLE IN CASES WHERE INDIVIDUALS ARE KILLED OR INJURED IN THE LINE OF DUTY. I AM PROVIDING COPIES OF THAT BOOKLET, -WORK-RELATED INJURIES AND FATALITIES—WHAT YOU AND YOUR FAMILY NEED TO KNOW ABOUT BENEFITS.'' AS REFLECTED IN THAT BOOK, DEPENDING UPON CIRCUMSTANCES, BENEFITS MAY BE PROVIDED BY A NUMBER OF SOURCES, INCLUDING-

THE EMPLOYING AGENCY

THE DEPARTMENT OF LABOR

THE OFFICE OF PERSONNEL MANAGEMENT

THE SOCIAL SECURITY ADMINISTRATION, AND

THE DEPARTMENT OF JUSTICE.

    IN ADDITION, AS REQUIRED BY SECTION 8125 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1997, AS INCLUDED IN SECTION 10 1 (b) OF PUBLIC LAW 1.04–208, THE OFFICE OF PERSONNEL MANAGEMENT, WITH THE COOPERATION OF AND INPUT FROM THE DEPARTMENT OF THE AIR FORCE, PREPARED A ''REPORT ON BENEFITS, ALLOWANCES, SERVICES AND FORMS OF ASSISTANCE WHICH MAY OR SHALL BE PROVIDED TO ANY CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT OR TO ANY PRIVATE CITIZEN, OR THE FAMILY OF SUCH INDIVIDUAL, WHO IS KILLED OR INJURED WHILE TRAVELING ON AN AIRCRAFT OWNED, LEASED, CHARTERED BY THE GOVERNMENT OF THE UNITED STATES.'' COPIES OF THAT REPORT ARE ALSO ATTACHED.

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    THANK YOU FOR THE OPPORTUNITY TO PROVIDE THIS INFORMATION. I WOULD BE PLEASED TO PROVIDE ANY ADDITIONAL INFORMATION FOR THE RECORD THAT THE SUBCOMMITTEE MAY REQUIRE.



PREPARED STATEMENT OF BARBARA PAYNE GORAN

    Lawrence '' Lawry'' Payne was a brother, a very close brother, the one I asked to care for my children if anything happened to myself and my husband. Now he is gone and the hole it has made in my heart will never close, it is always there.

    When I hear an amusing story or a particular song on the radio, I think '' Oh I'll call Lawry,'' but there is no Lawry to call. He died because of an unexplainable mistake, a mistake made by people I do not know. A mistake for which no one will be held accountable. A mistake for which the government and private industry keep passing the buck. . . . No one will accept blame for this horrible living nightmare my mother and I are living.

    My Mother at 82 never speaks of her son-the accident was such a trauma that it's as if her son had never been born. She never speaks his name. This mistake has taken part of her life, never to be returned.

    My children still can't believe that Lawry's not here or he's not inviting them down to Washington for the weekend. My husband worked with Lawry in setting up his business. They became like brothers and the emptiness he left with my husband will never be filled.

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    The honor degrees from the University of Massachusetts, his Masters degree from Harvard, the accolades from government officials, the words of former Senator Thomas who said if I ever had a son I'd have liked him to be just like Lawry,'' are no solace for the injustice of a mistake for which no one will accept blame. No one knows the time I spend trying to understand how the lack of attention to published procedure, how the lack of supervision by the government he worked for could cause such a tragic and horrible event . . . Not just a mistake . . . An injustice.



PREPARED STATEMENT OF THE FAMILIES OF THE CT–43

    There are several points on which the families of those killed on the CT–43A disagree with the Air Force report's conclusions:

1. The aircrew was in no way responsible for their own or anyone else's death. On previous flights (missions), they had exercised safety, caution, good judgment, and obedience to direct orders, even when General William Stevens had not. Colonel Albright, their wing commander, had been fired (relieved of his command) by General Stevens just five days before the ill-advised April 3rd crash as a direct result of accumulated disputes between Albright's insistence upon safety and Steven's unnecessarily placing safety secondary to ''mission.'' By this action the pilots in Col. Albright's wing were alerted to the new situation: when General Stevens says, ''Fly''. . . you fly, regardless of safety considerations, or face very serious consequences. If a Colonel can be fired, a Captain can be court martial. The air crew was not informed of USAFE's orders not to fly into Dubrovnik or thirty-plus airfields previously behind the Iron Curtain before they were Air Force-inspected and approved (TERPS-ed). General Stevens had received USAFE's orders and appealed them in November, 1995. General Stevens' appeal was denied by the Pentagon in January, 1996, but he refused to curtail such flights in complete violation of direct orders. On April 3, 1996 thirty-five people were killed. Before dawn on April 4 General Stevens communicated to his staff, ''I think we have a problem,'' and ordered the USAFE orders to be obeyed.

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2. Absent a complete USAF inspection of the Cilipe (Dubrovnik) airport, the aircrew had no way of knowing the only operative instrument approach was by use of two non-directional radio beacons (NDB) requiring two radio receivers (ADF), a navigational system more primitive than that of the ENola Gay a half century ago, a system the pilots had probably never used while in the USAF. The CT–43A was equipped with only one radio (ADF). Neither general orders, Air Force protocols, their specific orders, nor the flight charts informed them that they would absolutely have to have two radio receivers, which equipment they had never had to use previously even as optional equipment. This air crew was unexpectedly flying blind. Had they known they would have to rely on this primitive system, they could be faulted for not having two radios.

3. The reason that they had not properly configured the aircraft for landing and they were maintaining a speed of 140 mph at the moment they struck the mountain is because they did not intend to land. They struck the mountain at 70 feet below its peak because the map (missed approach chart) they were issued showed the mountain to be 200 feet lower than it actually was. The aircrew thought they had an additional 130 feet clearance when they slammed into a mountain they never saw.

Not only have our military families had to endure the loss of their beloveds' lives, they have had to bear the weight of having them falsely blamed as a cause for their own and others' deaths.

The families of the CT–43A want to make clear that, although the Department of Defense has strongly opposed every effort the families have made for: a) ensuring safety on passenger carrying government aircraft; b) providing equitable, modest, and just compensation to families whose beloved were killed by USAF's own acknowledged failures and negligence; c) providing some degree of redress for the public and for government employees in instances of gross negligence; and d) did not have a single representative of the Department of Defense present in Dubrovnik, Croatia at the dedication of Croatia's memorial to the mission and it's martyrs. Nonetheless, we continue to be resolutely committed and supportive of the men and women in U. S. military uniforms who willingly place their lives at risk for the defense of our country, to serve the best interests of our government, and to provide safe and valuable services for the other citizens serving the public good.

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    The report is inaccurate and unjust in laying any part of the blame for this horrendous loss on a loyal and capable air crew of the CT–43A who can mount no defense from their graves. They deserve a better deal, a square deal from the Pentagon.



PREPARED STATEMENT OF PATRICIA CONRAD

    Please enter the following as my testimony in the hearing record.

    My name is Patricia M. Conrad. My husband of 30 years was on board the humanitarian flight, CT–43 that crashed on April 3, 1996, in Croatia. Because Barry Conrad was one of the 13 private sector victims on this flight, this bill will not reflect on, nor aid his family in any way. I would like to make it perfectly clear that I believe completely that this bill is right and just.

    Soon after we were told the CT–43 flight was missing, we received at our home a call from the President of the United States. He expressed genuine concern and asked if them was anything that could be done to help, I feel sure that the conversation took place with the families of all 35 victims, The private sector received the help offered. The families of the government employees did not.

    My husband joined with the 34 others on this mission because he believed that his country had the ability and the responsibility to help those in need when asked, Our history and pride stand on the stories we tell each other and our children about the great heart of justice that resides in America, it's people and it's government representatives.

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    HR 3295 addresses this basic belief. This bill is a means whereby the government of the United States can correct the egregious failure of our government to take appropriate responsibility for it's negligence, to justly compensate ALL the families for their suffering and loss, the loss of the loved ones who traveled to the Balkans in service to their country and as delegates of the democratic system.

    Mr. Chairman, many of the of the surviving family members have suffered extreme difficulties since the death of their loved ones. The difficulties have been emotional, physical, and needlessly, economic. Ordinarily, when there is a commercial airline crash, surviving family members can make claims for the life insurance policies they had paid on for years. They make claims against those held negligent and responsible under our Tort Laws. This is not true for many of the families of the CT–43. Several claims of insurance were not paid because the victims were flying on an aircraft flown by the Air Force, and/or on a government aircraft, and/or not in a routine flight corridor.

    When individuals have suffered tortuous wrongs committed against them by Federal employees acting within the scope of their duties, most civilians can bring suit against the Federal Government, This is not true for ALL the CT–43 families.

    There is more than enough evidence of inequities between the help the government has given to others and those addressed in HR 3295, A few examples would be:

    The FAA1993 Cost Analysis Sets 2.7 Million per passenger for Airline crash

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1. The 2 Million paid to each European family whose loved one was killed in Calavese, Italy in 1997. This accident was also a result of gross negligence.

2. The $4.5 Million paid to the families for three Chinese embassy personnel killed in Belgrade, Serbia

3. The 1.9 Million paid to the Hernandez family for the accidental shooting of their son in May 1997

4. The 3 Million paid to Randall Weaver for the shooting of his wife and child at Ruby Ridge.

5. The 5.5 Million paid to the family of a postal worker who committed suicide because of harassment and discrimination by his boss and co-workers.

6. The total of $95,000,000 paid to the private sector of the CT–43 crash.

As though these inequities were not enough, the families of CT–43 have endured more.

1. Oklahoma bombing victims received through Congress money for counseling. Although the agencies involved in the 4.2 Task Force recommended counseling for families of victims killed aboard government aircraft, all the agencies refused to fund and the families of CT–43 were left to seek counseling on their own.

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2. The commercial airlines are expected to pay for travel to crash site for the families of victims. The TWA families are flown to the crash site for a one-year memorial. Our government provided no assistance to fly families to the crash site. The Croatian government erects a memorial at the crash site but our government does not help families to attend the ceremony for the dedication.

3. There was no disclosure of the risks to the passengers of CT43 of flying aboard government aircraft. Ex: Air Force aircraft do not have to meet FAA standards, your insurance my not apply, etc.

4. There was no oversight of the investigation by an outside agency. Those held responsible were left to investigate themselves.

5. There is no access to any court for redress or relief from gross negligence.

That is not to say that we did not appreciate the 17 gun salute, the service held at Dover Air Force Base, the President's words of praise, the memorial dedicated to their work and sacrifice in the Commerce building, or the support given by individuals with the government acting as individuals. All of this was welcomed, but earned by those that died on that plane. since then, the families have worked with government agencies in order that others not are caught in the catch 22 net. Some of the recommendations of the ''White House Commission on Aviation Safety and Security'' and the ''Aviation Disaster Family Assistance Act'' (ADFAA) were a result of actions by the families of CT–43, The driving focus was to insure others would not suffer needlessly and without assistance. Those of you that are forced to fly on CoDels have benefited by our efforts.

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In turn, the families have only asked that they be treated fairly and equally as others have been treated. I believe HP,3295 brings this about, Many others have testified for the justification of this bill-, it will reside in the records and need not be repeated by me in this testimony. I entreat you, in the name of all dedicated Americans that have died for their county, to pass this bill and support these families.

THANK YOU,

Patricia M. Conrad.

[NOTE: Additional material submitted for the record is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]