Administrative Claims Under the Federal Tort Claims Act

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 177

RIN 3206-AI70

Administrative Claims Under the Federal Tort Claims Act

AGENCY: Office of Personnel Management (OPM).

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes to revise

and update its regulations to reflect changes for the filing of

administrative claims with OPM pursuant to the Federal Tort Claims Act

for loss or damage of property, personal injury, or death caused by the

negligent or wrongful act or omission of OPM employees while acting

within the scope of their office or employment.

DATES: Written comments must be received on or before July 22, 1999.

ADDRESSES: Send written comments to Lorraine Lewis, General Counsel,

Office of Personnel Management, Room 7355, 1900 E Street NW.,

Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: James S. Green, Associate General

Counsel, or Gloria Clark, Paralegal Specialist, Office of the General

Counsel, (202) 606-1700.

SUPPLEMENTARY INFORMATION: The Federal Tort Claims Act, as amended, 28

U.S.C. 2671-2680, provides that the United States Government may be

held liable for property damage, personal injury, or death caused by

the negligent or wrongful act or omission of its employees, while they

are acting within the scope of their office or employment. The purpose

of the Federal Tort Claims Act, which was passed in 1946, was to waive

the traditional sovereign immunity of the United States from lawsuits

in certain tort cases so that injured persons could seek recovery from

the United States instead of from individual Federal employees who

committed alleged wrongdoings. Under the Federal Tort Claims Act, the

United States is responsible to injured persons for the common law

torts (i.e., torts as defined by state law case precedents rather than

by statutes) of its employees in the same manner and to the same extent

as a private individual under similar circumstances, in accordance with

the law of the place where the alleged act or omission occurred.

The Department of Justice (DOJ) has the responsibility for

overseeing the administration and implementation of the Federal Tort

Claims Act for the United States Government. DOJ has authorized each

agency to issue regulations and establish procedures consistent with

their regulations for the Federal Tort Claims Act. The Federal Tort

Claims Act authorizes the head of each Federal agency, or his designee,

to consider, compromise, and settle any claim for money damages against

the United States for injury or loss of property or personal injury or

death caused by the negligent or wrongful act or omission of any

employee while acting within the scope of their office or employment,

under circumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place where

the act or omission occurred. The Director of OPM has delegated the

responsibility for this function to the General Counsel of OPM. Any

award, compromise, or settlement in excess of $25,000 can only be

effected upon the prior written approval of the Attorney General.

These regulations will only apply to claims asserted under the

Federal Tort Claims Act for money damages against the United States for

injury to or loss of property or personal injury or death caused by the

negligent or wrongful act or omission of an officer or employee of OPM

while acting within the scope of his or her office or employment. The

proposed regulations will update OPM's regulations for the Federal Tort

Claims Act and include revisions to reflect changes for the filing of

administrative claims by claimants and the delegation of authority for

this function within OPM by the General Counsel.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities (including

small businesses, small organizational units, and small governmental

jurisdictions) because the changes will only affect the Federal

Government.

List of Subjects in 5 CFR Part 177

Claims.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, the Office of Personnel Management proposes to revise

5 CFR part 177 as follows:

PART 177--ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT

Sec.

177.101 Scope of regulations.

177.102 Administrative claim; when presented; appropriate OPM

office.

177.103 Administrative claim; who may file.

177.104 Investigations.

177.105 Administrative claim; evidence and information to be

submitted.

177.106 Authority to adjust, determine, compromise, and settle.

177.107 Limitations on authority.

177.108 Referral to Department of Justice.

177.109 Final denial of claim.

177.110 Action on approved claim.

Authority: 28 U.S.C. 2672; 28 CFR 14.11.

Sec. 177.101 Scope of regulations.

These regulations apply only to claims presented or filed with the

Office of Personnel Management (OPM) under the Federal Tort Claims Act,

as amended, for money damages against the United States for injury to

or loss of property or personal injury or death caused by the negligent

or wrongful act or omission of an officer or employee of OPM while

acting within the scope of his or her office or employment.

Sec. 177.102 Administrative claim; when presented; appropriate OPM

office.

(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and

2675, a claim is deemed to have been presented when OPM receives from a

claimant, his or her authorized agent or legal representative, an

executed Standard Form 95 (Claim for Damage, Injury or Death), or other

written notification of an incident, accompanied by a claim for money

damages stating a sum certain (a specific dollar amount) for injury to

or loss of property, personal injury, or death alleged to have occurred

as a result of the incident.

[[Page 33227]]

(b) All claims filed under the Federal Tort Claims Act as a result

of the alleged negligence or wrongdoing of OPM or its employees will be

mailed or delivered to the Office of the General Counsel, United States

Office of Personnel Management, 1900 E Street NW., Washington, DC

20415-1300.

(c) A claim must be presented to the Federal agency whose

activities gave rise to the claim. A claim that should have been

presented to OPM, but was mistakenly addressed to or filed with another

Federal agency, is presented to OPM, as required by 28 U.S.C. 2401(b),

as of the date OPM receives the claim. When a claim is mistakenly

presented to OPM, OPM will transfer the claim to the appropriate

Federal agency, if ascertainable, and advise the claimant of the

transfer, or return the claim to the claimant.

(d) A claimant whose claim arises from an incident involving OPM

and one or more other Federal agencies, will identify each agency to

which the claim has been submitted at the time the claim is presented

to OPM. OPM will contact all other affected Federal agencies in order

to designate the single agency that will investigate and decide the

merits of the claim. In the event a designation cannot be agreed upon

by the affected agencies, the Department of Justice will be consulted

and will designate an agency to investigate and determine the merits of

the claim. The designated agency will notify the claimant that all

future correspondence concerning the claim must be directed to that

Federal agency. All involved Federal agencies may agree to conduct

their own administrative reviews and to coordinate the results, or to

have the investigation conducted by the designated Federal agency, but,

in either event, the designated agency will be responsible for the

final determination of the claim.

(e) A claim presented in compliance with paragraph (a) of this

section may be amended by the claimant at any time prior to final

agency action or prior to the exercise of the claimant's option under

28 U.S.C. 2675(a). Amendments must be in writing and signed by the

claimant or his or her authorized agent or legal representative. Upon

timely filing of an amendment to a pending claim, OPM will have 6

months in which to make a final disposition of the claim as amended and

claimant's option under 28 U.S.C. 2675(a) will not accrue until 6

months after the filing of an amendment.

Sec. 177.103 Administrative claim; who may file.

(a) A claim for injury to or loss of property may be presented by

the owner of the property, his or her authorized legal agent or legal

representative.

(b) A claim for personal injury may be presented by the injured

person, his or her authorized agent, or legal representative.

(c) A claim based on death may be presented by the executor or

administrator of the decedent's estate or by any other person legally

entitled to assert a claim under applicable State law.

(d) A claim for loss wholly compensated by an insurer with the

rights of a subrogee may be presented by the insurer. A claim for loss

partially compensated by an insurer with the rights of subrogee may be

presented by the insurer or the insured individually, as their

respective interests appear, or jointly. When an insurer presents a

claim asserting the rights of a subrogee, he or she will present with

the claim appropriate evidence that he or she has the rights of a

subrogee.

(e) A claim presented by an agent or legal representative must be

presented in the name of the claimant, be signed by the agent or legal

representative, show the title or legal capacity of the person signing,

and be accompanied by evidence of his or her authority to present a

claim on behalf of the claimant as agent, executor, administrator,

parent, guardian, or other representative.

Sec. 177.104 Investigations.

OPM may investigate, or may request any other Federal agency to

investigate, a claim filed under this part.

Sec. 177.105 Administrative claim; evidence and information to be

submitted.

(a) Death. In support of a claim based on death, the claimant may

be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence

showing cause of death, date of death, and age of the decedent.

(2) Decedent's employment or occupation at time of death, including

his or her monthly or yearly salary or earnings (if any), and the

duration of his or her last employment or occupation.

(3) Full names, addresses, birth date, kinship, and marital status

of the decedent's survivors, including identification of those

survivors who were dependent for support on the decedent at the time of

death.

(4) Degree of support afforded by the decedent to each survivor

dependent on him or her for support at the time of death.

(5) Decedent's general physical and mental condition before death.

(6) Itemized bills for medical and burial expenses incurred by

reason of the incident causing death, or itemized receipts of payment

for such expenses.

(7) If damages for pain and suffering before death are claimed, a

physician's detailed statement specifying the injuries suffered,

duration of pain and suffering, any drugs administered for pain, and

the decedent's physical condition in the interval between injuries and

death.

(8) Any other evidence or information which may have a bearing on

either the responsibility of the United States for the death or the

amount of damages claimed.

(b) Personal injury. In support of a claim for personal injury,

including pain and suffering, the claimant may be required to submit

the following evidence or information:

(1) A written report by the attending physician or dentist setting

forth the nature and extent of the injury, nature and extent of

treatment, any degree of temporary or permanent disability, the

prognosis, period of hospitalization, and any diminished earning

capacity. In addition, the claimant may be required to submit to a

physical or mental examination by a physician employed by OPM or

another Federal agency. OPM will make available to the claimant a copy

of the report of the examining physician on written request by the

claimant, provided that he or she has, upon request, furnished the

report referred to in the first sentence of this subparagraph and has

made or agrees to make available to OPM any other physician's reports

previously or thereafter made of the physical or mental condition which

is the subject matter of his or her claim.

(2) Itemized bills for medical, dental, and hospital expenses

incurred, or itemized receipts of payment for such expenses.

(3) If the prognosis reveals the necessity for future treatment, a

statement of expected expenses for such treatment.

(4) If a claim is made for loss of time from employment, a written

statement from his or her employer showing actual time lost from

employment, whether he or she is a full-or part-time employee, and

wages or salary actually lost.

(5) If a claim is made for loss of income and the claimant is self-

employed, documentary evidence showing the amount of earnings actually

lost.

[[Page 33228]]

(6) Any other evidence or information which may have a bearing on

either the responsibility of the United States for the personal injury

or the damages claimed.

(c) Property damage. In support of a claim for injury to or loss of

property, real or personal, the claimant may be required to submit the

following evidence or information:

(1) Proof of ownership of the property.

(2) A detailed statement of the amount claimed with respect to each

item of property.

(3) An itemized receipt of payment for necessary repairs or

itemized written estimates of the cost of such repairs.

(4) A statement listing date of purchase, purchase price, and

salvage value, where repair is economical.

(5) Any other evidence or information which may have a bearing on

either the responsibility of the United States for the injury to or

loss of property or the damages claimed.

Sec. 177.106 Authority to adjust, determine, compromise, and settle.

(a) The General Counsel of OPM, or his or her designee, is

delegated authority to consider, ascertain, adjust, determine,

compromise, and settle claims under the provisions of 28 U.S.C. 2672,

and this part. The General Counsel, in his or her discretion, has the

authority to further delegate the responsibility for adjudicating,

considering, adjusting, compromising, and settling any claim submitted

under the provisions of 28 U.S.C. 2672, and this part, that is based on

the alleged negligence or wrongful act or omission of an OPM employee,

with the exception of claims involving personal injury. All claims

involving personal injury will be adjudicated, considered, adjusted,

compromised and settled by the Office of the General Counsel.

Sec. 177.107 Limitations on authority.

(a) An award, compromise, or settlement of a claim under 28 U.S.C.

2672 and this part in excess of $25,000 may be effected only with the

prior written approval of the Attorney General or his or her designee.

For purposes of this paragraph, a principal claim and any derivative or

subrogated claim will be treated as a single claim.

(b) An administrative claim may be adjusted, determined,

compromised, or settled under this part, only after consultation with

the Department of Justice when, in the opinion of the General Counsel

of OPM, or his or her designee:

(1) A new precedent or a new point of law is involved; or

(2) A question of policy is or may be involved; or

(3) The United States is or may be entitled to indemnity or

contribution from a third party and OPM is unable to adjust the third

party claim; or

(4) The compromise of a particular claim, as a practical matter,

will or may control the disposition of a related claim in which the

amount to be paid may exceed $25,000.

(c) An administrative claim may be adjusted, determined,

compromised, or settled under 28 U.S.C. 2672 and this part only after

consultation with the Department of Justice when OPM is informed or is

otherwise aware that the United States or an employee, agent, or cost-

type contractor of the United States is involved in litigation based on

a claim arising out of the same incident or transaction.

Sec. 177.108 Referral to Department of Justice.

When Department of Justice approval or consultation is required, or

the advice of the Department of Justice is otherwise to be requested,

under Sec. 177.107, the written referral or request will be transmitted

to the Department of Justice by the General Counsel of OPM or his or

her designee.

Sec. 177.109 Final denial of claim.

Final denial of an administrative claim must be in writing and sent

to the claimant, his or her attorney, or legal representative by

certified or registered mail. The notification of final denial may

include a statement of the reasons for the denial, but it must include

a statement that, if the claimant is dissatisfied with the OPM action,

he or she may file suit in an appropriate United States district court

not later than 6 months after the date of mailing of the notification.

Sec. 177.110 Action on approved claim.

(a) Payment of a claim approved under this part is contingent on

claimant's execution of a Standard Form 95 (Claim for Damage, Injury or

Death); a claims settlement agreement; and a Standard Form 1145

(Voucher for Payment), as appropriate. When a claimant is represented

by an attorney, the Voucher for Payment must designate both the

claimant and his or her attorney as payees, and the check will be

delivered to the attorney, whose address is to appear on the Voucher

for Payment.

(b) Acceptance by the claimant, his or her agent, or legal

representative, of an award, compromise, or settlement made under 28

U.S.C. 2672 or 28 U.S.C. 2677 is final and conclusive on the claimant,

his or her agent or legal representative, and any other person on whose

behalf or for whose benefit the claim has been presented, and

constitutes a complete release of any claim against the United States

and against any employee of the Government whose act omission gave rise

to the claim, by reason of the same subject matter.

[FR Doc. 99-15805 Filed 6-21-99; 8:45 am]

BILLING CODE 6325-01-P