42 U.S.C. § 7385c — Exclusivity of remedy against the United

Page 7148 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7385a subchapter shall be offset by the amount of any payment made pursuant to a final award or set- tlement on a claim (other than a claim for worker’s compensation), against any person, that is based on injuries incurred by that indi- vidual on account of the exposure for which compensation is payable under this subchapter. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3641], Oct. 30, 2000, 114 Stat. 1654, 1654A–509; Pub. L. 108–375, div. C, title XXXI, § 3162(a), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–375 substituted ‘‘this subchapter’’ for ‘‘part B’’ and ‘‘on account of the exposure for which compensation is payable under this subchapter’’ for ‘‘on account of the exposure of a covered beryllium em- ployee, covered employee with cancer, covered em- ployee with chronic silicosis (as defined in section 7384r of this title), or covered uranium employee (as defined in section 7384u of this title), while so employed, to be- ryllium, radiation, silica, or radiation, respectively’’. § 7385a. Subrogation of the United States Upon payment of compensation under this subchapter, the United States is subrogated for the amount of the payment to a right or claim that the individual to whom the payment was made may have against any person on account of injuries referred to in section 7385 of this title. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3642], Oct. 30, 2000, 114 Stat. 1654, 1654A–509; Pub. L. 108–375, div. C, title XXXI, § 3162(b), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–375 substituted ‘‘this subchapter’’ for ‘‘part B’’. § 7385b. Payment in full settlement of claims Except as provided in part E, the acceptance by an individual of payment of compensation under part B with respect to a covered employee shall be in full satisfaction of all claims of or on behalf of that individual against the United States, against a Department of Energy con- tractor or subcontractor, beryllium vendor, or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in section 7385 of this title. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3643], Oct. 30, 2000, 114 Stat. 1654, 1654A–509; Pub. L. 108–375, div. C, title XXXI, § 3162(c), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–375 substituted ‘‘Except as provided in part E, the acceptance’’ for ‘‘The acceptance’’. § 7385c. Exclusivity of remedy against the United States and against contractors and sub- contractors (a) In general The liability of the United States or an instru- mentality of the United States under this sub- chapter with respect to a cancer (including a specified cancer), chronic silicosis, covered be- ryllium illness, or death related thereto of a covered employee is exclusive and instead of all other liability— (1) of— (A) the United States; (B) any instrumentality of the United States; (C) a contractor that contracted with the Department of Energy to provide manage- ment and operation, management and inte- gration, or environmental remediation of a Department of Energy facility (in its capac- ity as a contractor); (D) a subcontractor that provided services, including construction, at a Department of Energy facility (in its capacity as a subcon- tractor); and (E) an employee, agent, or assign of an en- tity specified in subparagraphs (A) through (D); (2) to— (A) the covered employee; (B) the covered employee’s legal represent- ative, spouse, dependents, survivors, and next of kin; and (C) any other person, including any third party as to whom the covered employee, or the covered employee’s legal representative, spouse, dependents, survivors, or next of kin, has a cause of action relating to the cancer (including a specified cancer), chronic sili- cosis, covered beryllium illness, or death, otherwise entitled to recover damages from the United States, the instrumentality, the contractor, the subcontractor, or the em- ployee, agent, or assign of one of them, because of the cancer (including a specified can- cer), chronic silicosis, covered beryllium illness, or death in any proceeding or action including a direct judicial proceeding, a civil action, a pro- ceeding in admiralty, or a proceeding under a tort liability statute or the common law. (b) Applicability This section applies to all cases filed on or after October 30, 2000. (c) Workers’ compensation This section does not apply to an administra- tive or judicial proceeding under a Federal or State workers’ compensation law. (d) Applicability to part E This section applies with respect to part E to the covered medical condition or covered illness or death of a covered DOE contractor employee on the same basis as it applies with respect to part B to the cancer (including a specified can- cer), chronic silicosis, covered beryllium illness, or death of a covered employee. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3644], Oct. 30, 2000, 114 Stat. 1654, 1654A–509; Pub. L. Page 7149 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7385g 108–375, div. C, title XXXI, § 3162(d), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Subsec. (d). Pub. L. 108–375 added subsec. (d). § 7385d. Election of remedy for beryllium employ- ees and atomic weapons employees (a) Effect of tort cases filed before enactment of original law (1) Except as provided in paragraph (2), if an otherwise eligible individual filed a tort case specified in subsection (d) before October 30, 2000, such individual shall be eligible for com- pensation and benefits under part B. (2) If such tort case remained pending as of De- cember 28, 2001, and such individual does not dis- miss such tort case before December 31, 2003, such individual shall not be eligible for such compensation or benefits. (b) Effect of tort cases filed between enactment of original law and enactment of 2001 amendments (1) Except as provided in paragraph (2), if an otherwise eligible individual filed a tort case specified in subsection (d) during the period be- ginning on October 30, 2000, and ending on De- cember 28, 2001, such individual shall not be eli- gible for such compensation or benefits. (2) If such individual dismisses such tort case on or before the last permissible date specified in paragraph (3), such individual shall be eligible for such compensation or benefits. (3) The last permissible date referred to in paragraph (2) is the later of the following dates: (A) April 30, 2003. (B) The date that is 30 months after the date the individual first becomes aware that an ill- ness covered by part B of a covered employee may be connected to the exposure of the cov- ered employee in the performance of duty under section 7384n of this title. (c) Effect of tort cases filed after enactment of 2001 amendments (1) If an otherwise eligible individual files a tort case specified in subsection (d) after Decem- ber 28, 2001, such individual shall not be eligible for such compensation or benefits if a final court decision is entered against such individual in such tort case. (2) If such a final court decision is not entered, such individual shall nonetheless not be eligible for such compensation or benefits, except as fol- lows: If such individual dismisses such tort case on or before the last permissible date specified in paragraph (3), such individual shall be eligible for such compensation and benefits. (3) The last permissible date referred to in paragraph (2) is the later of the following dates: (A) April 30, 2003. (B) The date that is 30 months after the date the individual first becomes aware that an ill- ness covered by part B of a covered employee may be connected to the exposure of the cov- ered employee in the performance of duty under section 7384n of this title. (d) Covered tort cases A tort case specified in this subsection is a tort case alleging a claim referred to in section 7385b of this title against a beryllium vendor or atomic weapons employer. (e) Workers’ compensation This section does not apply to an administra- tive or judicial proceeding under a State or Fed- eral workers’ compensation law. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3645], Oct. 30, 2000, 114 Stat. 1654, 1654A–510; Pub. L. 107–107, div. C, title XXXI, § 3151(a)(5), Dec. 28, 2001, 115 Stat. 1374.) Editorial Notes AMENDMENTS 2001—Subsecs. (a) to (d). Pub. L. 107–107 amended headings and text of subsecs. (a) to (d) generally, sub- stituting present provisions for provisions relating to election to file suit in subsec. (a), applicable time lim- its in subsec. (b), dismissal of claims in subsec. (c), and dismissal of pending suit in subsec. (d). § 7385e. Certification of treatment of payments under other laws Compensation or benefits provided to an indi- vidual under this subchapter— (1) shall be treated for purposes of the inter- nal revenue laws of the United States as dam- ages for human suffering; and (2) shall not be included as income or re- sources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31 or the amount of such benefits. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3646], Oct. 30, 2000, 114 Stat. 1654, 1654A–510; Pub. L. 108–375, div. C, title XXXI, § 3162(e), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–375 substituted ‘‘this subchapter’’ for ‘‘part B’’. § 7385f. Claims not assignable or transferable; choice of remedies (a) Claims not assignable or transferable No claim cognizable under this subchapter shall be assignable or transferable. (b) Choice of remedies No individual may receive more than one pay- ment of compensation under part B. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3647], Oct. 30, 2000, 114 Stat. 1654, 1654A–511; Pub. L. 108–375, div. C, title XXXI, § 3162(f), Oct. 28, 2004, 118 Stat. 2186.) Editorial Notes AMENDMENTS 2004—Subsec. (a). Pub. L. 108–375 substituted ‘‘this subchapter’’ for ‘‘part B’’. § 7385g. Attorney fees (a) General rule Notwithstanding any contract, the representa- tive of an individual may not receive, for serv- ices rendered in connection with the claim of an