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CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT

DAO 203-24: CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
Number: DAO 203-24
Effective Date: 1997-03-27

SECTION 1. PURPOSE.

.01 The purpose of this Order is to delegate authority to settle or deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-2680) as amended by Public Law 89-506, 80 Stat. 306, and to establish procedures for the administrative adjudication of such claims.

.02 This revision reflects a general update of the Order.

SECTION 2. PROVISIONS OF LAW AND REGULATIONS THEREUNDER.

.01 Section 2672 of Title 28, United States Code (U.S.C.), as amended, provides that:

a. "The head of each Federal agency or his/her designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, 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 of the agency while acting within the scope of his 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: Provided, that any award, compromise or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his/her designee."

b. "Subject to the provisions of this title relating to civil actions on tort claims against the United States, any such award, compromise, settlement or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud."

c. "Any award, compromise or settlement in an amount of $2,500 or less made pursuant to this section shall be paid by the head of the Federal agency concerned out of appropriations available to that agency. Payment of any award, compromise or settlement in an amount in excess of $2,500 made pursuant to this section or made by the Attorney General in any amount pursuant to Section 2677 of this title shall be paid in a manner similar to judgments and compromises in like causes and appropriations or funds available for the payment of such judgments and compromises are hereby made available for the payment of awards, compromises and settlements under this chapter."

d. "The acceptance by the claimant of any such award, compromise or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter."

.02 Subsection (a) of Section 2675 of Title 28 provides that:

"An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his/her office of employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claims shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of any agency to make final disposition of claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, crossclaim, of counterclaim."

.03 Section 2678 of Title 28 provides that no attorney shall charge fees in excess of 25% of a judgment or settlement after litigation, or over 20% of administrative settlement.

.04 Section 2679 of Title 28 provides that tort remedies against the United States arising from the negligent or wrongful acts or omissions of an employee acting within the scope of his/her office or employment is exclusive of any other civil action against the employee. Thus if an employee is sued personally for n alleged tort committed within the scope of his employment, the Assistant General Counsel for Finance and Litigation will request that the Department of Justice certify the employee and substitute the United States as sole defendant.

.05 Section 2401(b) of Title 28 provides that:

"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented."

.06 Pursuant to Section 2672 as amended, the Attorney General has issued regulations (herein referred to as "the regulations") prescribing standards and procedures for settlement of tort claims (28 C.F.R. Part 14). Persons delegated authority under this Order shall follow and be guided by these Regulations, a copy of which is attached as Appendix A to this Order.

SECTION 3. DELEGATION OF AUTHORITY.

.01 The General Counsel shall serve as designee of the Secretary of Commerce for the Office of the Secretary and all primary operating units with respect to tort claims filed under Section 2672 of Title 28, U.S.C., with authority to settle or deny such claims.

.02 Authority delegated under this section may be redelegated.

.03 Settlement or denial of any claim under this Order is final for the Department of Commerce (the "Department").

SECTION 4. PROCEDURES FOR FILING CLAIMS.

.01 The procedure for filing and the contents of claims shall be pursuant to Sections 14.2, 14.3, and 14.4 of the Regulations.

.02 Claims shall be filed with the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, D.C. 20230.

.03 If a claim is filed elsewhere in the Department, it shall immediately be recorded and transmitted to the Assistant General Counsel for Finance and Litigation.

SECTION 5. ADJUDICATION AND SETTLEMENT OF CLAIMS.

.01 Upon receipt of a claim by the Assistant General Counsel for Finance and Litigation, the time and date of receipt shall be recorded. If a claim involves a primary operating unit to which authority has been redelegated under paragraph 3.02 of this Order, the Assistant General Counsel shall, after recording the claim, transmit it to the appropriate official of that unit. The appropriate official shall prepare a file, obtain additional information as necessary, and prepare for the Assistant General Counsel's signature a proposed award or denial of the claim. If the investigation capabilities of the unit are insufficient for a proper and complete investigation, the unit shall consult with the Departmental Office of Security and Administrative Services, Office of Security to:

a. have that Office conduct the investigation; or

b. request another Federal agency to conduct the investigation as necessary, pursuant to section 14.8 of the Regulations, on a reimbursable basis.

.02 If the amount of the proposed award exceeds $25,000 (in which case, approval by the Attorney General is required), or if consultation with the Department of Justice is desired or required pursuant to section 14.6 of the Regulations, the Assistant General Counsel for Finance and Litigation will prepare and compile the material required by the Department of Justice under section 14.6 of the Regulations.

.03 Denial of a claim shall be communicated as provided by section 14.9 of the Regulations.

.04 Designees hereunder are responsible for the control over and expeditious handling of claims, bearing in mind the applicable statutory time limitations for adjudication of claims.

SECTION 6. PAYMENT OF CLAIMS.

When an award is made, the file on the case shall be transmitted to the appropriate fiscal office for payment by the Department or for transmittal for payment as prescribed by section 14.10 of the Regulations. Prior to payment appropriate releases shall be obtained, as provided in the Regulations.

SECTION 7. SUPPLEMENTARY REGULATIONS.

.01 The General Counsel may from time to time issue such supplementary regulations or instructions as deemed appropriate to carry out the purpose of this Order.

.02 Any designee mentioned in paragraph 3.02 of this Order may issue regulations or instructions covering their area of responsibility which is consistent with this Order and with those issues under paragraph .01 of this section, such regulations and instructions to be approved by the Assistant General Counsel for Finance and Litigation.

SECTION 8. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 203-24, dated September 11, 1981.

Signed by: Secretary of Commerce

Office of Primary Interest: Office of the General Counsel

Index Change:

Delete

Claims

Tort Settlement of 203-24

APPENDIX A DAO 203-24

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Page last updated:February 2, 2010