RD Instruction 2042-A

PART 2042 - TORT CLAIMS

SUBPART A - Claims Under Federal Tort Claims Act

[TABLE OF CONTENTS]{.underline}

[Sec]{.underline}. [Page]{.underline}

2042.1 General. 1

2042.2 Authority and responsibility. 1

\(a\) Authority. 1

\(b\) Responsibility. 1

2042.3 Statutory limitations on submission of claims. 2

2042.4 Who may file a claim. 2

\(a\) Claim for injury to or loss of property. 2

\(b\) Claim for personal injury. 2

\(c\) Claim based on death. 2

\(d\) Claim for loss compensated by insurer. 3

\(e\) Claim presented by agent or legal representative. 3

2042.5 Evidence and information required from claimant. 3

\(a\) Claim for property damage. 3

\(b\) Claim for personal injury. 3

\(c\) Claim for death. 4

\(d\) Non-obtainability of evidence or information. 5

2042.6 Procedures for handling claims. 5

\(a\) Filing claims. 5

\(b\) Restriction on discussion of the merits of claims. 6

\(c\) Receiving claims. 6

\(d\) Processing claims. 6

\(e\) Administrative Reports. 8

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RD Instruction 2042-A

Table of Contents

Page 2

[Sec]{.underline}. [Page]{.underline}

2042.7 Determination of claims. 8

\(a\) Allowance of claims. 8

\(b\) Disallowance of claims. 8

2042.8 Payment of claims. 9

2042.9 Suits against employees. 9

2042.10 - 2042.50 \[Reserved\] 9

Exhibit A - Sample Administrative Claim

Exhibit B - Sample Response to Defective Claim

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RD Instruction 2042-A

PART 2042 - TORT CLAIMS

SUBPART A - Claims Under Federal Tort Claims Act

§2042.1 [General]{.underline}.

This subpart outlines the basic provisions of the Federal Tort Claims
Act (FTCA), as amended, and provides the procedures for processing
claims brought against the United States, by claimants, for wrongful
acts or omissions of employees acting in the scope of their offices or
employment with Rural Development.

§2042.2 [Authority and responsibility]{.underline}.

\(a\) [Authority]{.underline}. Under the provisions of the Federal Tort
Claims Act, 28 U.S.C. 2671 - 2680, the United States Department of
Agriculture (USDA) may receive and settle claims against the USDA for
personal injury, death, or property loss or damage caused by the
negligent or wrongful act or omission of any employee of the USDA while
acting within the scope of his/her office or employment, when, under the
same circumstances, if the USDA were a private person, it would be
liable in accordance with the law of the place where the act or omission
occurred. Claims may be considered without regard to the amount claimed;
however, any settlement in excess of \$25,000 must have prior written
approval of the United States Attorney General or his/her designee.

\(b\) [Responsibility]{.underline}. The responsibility to consider and
settle claims against the USDA has been delegated to the Office of the
General Counsel (OGC). The General Counsel and such employees of OGC as
may be designated by the General Counsel, have authority to consider,
ascertain, adjust, determine, compromise, and settle claims pursuant to
the FTCA, as amended, and the regulations of the Attorney General and
the USDA. Representatives of OGC may contact directly Rural Development
field employees, claimants, or their duly authorized agents or legal
representatives regarding evidence or information needed for
determination concerning claims.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DISTRIBUTIONS: WSDC Administrative Services

Tort Claims

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RD Instruction 2042-A

§2042.3 [Statutory limitations on submission of claims]{.underline}.

Claims not submitted within the time limits prescribed by law are
automatically barred. For this reason, all documents received in
connection with a claim must be stamped showing date received, and
office identification, and should include the initials or signature of
the recipient.

\(a\) A tort claim is barred unless a written demand for money damages
in a sum certain to be accepted and considered by OGC is presented
within two years after the claim accrues. Claimants must file suit in
Federal District Court within six months following the date of mailing,
by certified or registered mail, of notice of final denial of the claim
if they wish to contest denial of their claim by USDA. Suit may not be
instituted on a claim unless the claimant has first presented the claim
to the USDA for administrative determination and the claim is denied,
except in the case of counterclaims, cross claims and third party
claims. However, if a claim has not been disposed of within six months
from the date of filing, the claimant may file suit in an appropriate
United States District Court.

\(b\) Once a claim has been filed, the claimant may not sue for more
than the amount of the original claim unless there is newly discovered
evidence or intervening facts. A claim may be withdrawn by giving notice
to the OGC.

§2042.4 [Who may file a claim]{.underline}.

Claims filed under the provisions of the FTCA may be submitted as set
forth in this subpart and [must be accompanied]{.underline} by
sufficient facts for the Agency to investigate the claim.

\(a\) [Claim for injury to or loss of property]{.underline}. A claim for
injury to or loss of property may be presented by the owner of the
property, a duly authorized agent, or legal representative.

\(b\) [Claim for personal injury]{.underline}. A claim for personal
injury may be presented by the injured person, a duly authorized agent,
or legal representative.

\(c\) [Claim based on death]{.underline}. 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 such a claim in
accordance with applicable State law.

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RD Instruction 2042-A

§2042.4 (Con.)

\(d\) [Claim for loss compensated by insurer]{.underline}. 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 a subrogee, may be presented by the
parties individually, as their respective interests appear, or jointly.

\(e\) [Claim presented by agent or legal representative]{.underline}. A
claim presented by an agent or legal representative shall be presented
in the name of the claimant, be signed by the agent or legal
representative, show title or legal capacity of the person signing, and
be accompanied by evidence of the authority to present the claim on
behalf of the claimant as agent, executor, administrator, parent,
guardian, or other representative.

§2042.5 [Evidence and information required from claimant]{.underline}.

For a claim to be accepted and considered by the OGC, the claimant must
submit a properly executed Standard Form 95, \"Claim for Damage, Injury,
or Death,\" (see Exhibit A) or other written demand for money damages in
a sum certain to be accepted and considered by OGC (see Exhibit B). The
claim must specify the total amount claimed and be supported by the
following evidence.

\(a\) [Claim for property damage]{.underline}. In support of a claim for
injury to or loss of property, real or personal, the claimant is
required to submit the following evidence or information:

\(1\) Proof of ownership.

\(2\) A detailed statement of the amount claimed with respect to each
item of property.

\(3\) An itemized receipt of payment for necessary repairs or at least
two written estimates of the cost of such repairs.

\(4\) A statement listing date of purchase, purchase price and salvage
value, when repairs are not economical.

\(5\) Any other evidence or information which may have a bearing on
either the responsibility of the United States for injury to or loss of
property or the damage claimed.

\(b\) [Claim for personal injury]{.underline}. In support of a claim for
personal injury, including pain and suffering, the claimant shall be
required to submit the following evidence or information.

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RD Instruction 2042-A

§2042.5(b) (Con.)

\(1\) 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 the Department
or other Federal agency. A copy of the report of the examining physician
shall be made available to the claimant upon the claimant\'s written
request, provided the claimant has furnished the report referred to in
the first sentence of this paragraph and has made or agrees to make
available to the Department any other physician\'s reports previously or
thereafter made of the physical or mental condition which is the subject
matter of the 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 the claimant\'s employer showing actual time lost from
employment, whether claimant 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 amounts of earnings
actually lost.

\(6\) 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.

\(c\) [Claim for death]{.underline}. In support of a claim based on
death, the claimant shall 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 the time of death,
including salary earnings (if any) and the duration of last employment
or occupation.

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RD Instruction 2042-A

§ 2042.5(c) (Con.)

\(3\) Full names, addresses, birthdates, relationship, and marital
status of the decedent\'s survivors, including identification of those
survivors who, at the time of the decedent\'s death, were dependent upon
the decedent for support.

\(4\) Degree of support afforded by the decedent to each surviving
dependent at the time of the decedent\'s 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 prior to 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 during the interval between injury 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
damages claimed.

\(d\) [Non-obtainability of evidence or information]{.underline}. In any
case where all of the information or evidence required under paragraphs
(a), (b), or (c) of this section cannot be obtained, the OGC may
determine that such information or evidence is unnecessary for proper
disposition of the claim.

§ 2042.6 [Procedures for handling claims]{.underline}.

\(a\) [Filing claims]{.underline}. When a claimant wishes to make a
claim, the local Rural Development office which employs the employee who
allegedly committed the negligent or wrongful act or omission will
furnish the claimant with Standard Form 95. The Rural Development office
should inform the claimant to complete the SF-95 in accordance with the
instructions on the reverse of the form, and to file the completed SF-95
together with the appropriate substantiating evidence and information
specified in § 2042.5 of this subpart with that office. The Rural
Development office should advise the claimant that final disposition of
the claim comes under the jurisdiction of the OGC and that inquiries
concerning progress of the claim should be directed to the OGC.

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RD Instruction 2042-A

§ 2042.6 (Con.)

\(b\) [Restriction on discussion of the merits of claims]{.underline}.
An employee may furnish the claimant information concerning rights,
procedures, and forms for presenting a claim. Under no circumstances
should an employee undertake to assume liability for damages on behalf
of the Government or advance any opinion as to the merits of the claim.
The giving of aid or assistance by a Government employee \"other than in
discharge of proper official duties\" to any claimant in prosecuting any
claim against the USDA is prohibited by law.

\(c\) [Receiving claims]{.underline}. Upon receipt of a claim or
potential claim by any Rural Development office, whether in the form of
a letter or SF 95, the recipient should stamp the material submitted
showing date received, office identification, and signature or initials
of the recipient. This information is essential in order to establish
the filing date in accordance with the statutory limitation requirements
specified in\
§ 2042.3 of this subpart. The recipient should review the material
submitted and determine if the claimant is seeking redress under the
FTCA or under some other authority. If brought under the FTCA, the claim
should be reported to the National Office Tort Claims Officer (TCO),
Support Services Division. At that time all files concerning the subject
should be \"frozen\" and handled in accordance with § 2033.8 (b)(5) of
RD Instruction 2033-A. (Revised 10-30-02, PN 352.)

\(d\) [Processing claims]{.underline}. For all tort claims filed with
District or County Offices, the State Office is responsible for
examining the claim and determining if the Standard Form 95 or the
Administrative Claim letter (see sample letter in Exhibit A) has been
properly completed. Also, determine if the evidence required to be
submitted by the claimant is in accordance with § 2042.5 of this
subpart. If the claim meets all the requirements of a claim under the
FTCA, the claim should be acknowledged and the claimant informed that
the claim is being forwarded to OGC for determination. If a claim does
not meet the requirements of the FTCA, the claimant should be
specifically informed of the deficiencies and asked to remedy them in a
manner similar to the sample letter shown in Exhibit B. Claimants should
also be informed that OGC will not issue a determination until all
defects are cured. Neither in this letter nor in any other manner,
except to the extent required by law, should agency personnel make any
admission concerning the incident involved in the claim or sufficiency
of the filing of the claim. The response to such inquiries should be
that such decisions must come from OGC. (Revised 10-30-02, PN 352.)

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RD Instruction 2042-A

§ 2042.6(d) (Con.)

\(1\) [Claims of \$100,000 or less]{.underline}. If the claim is
\$100,000 or less, it is the responsibility of the State Office
officials to summarize the claim, compile all documents and other
evidence relevant to the claim. The claim and three (3) copies of all
relevant documents and other evidence should then be submitted to the
appropriate Office of the General Counsel (OGC) field office. (Revised
02-04-04, PN 370.)

\(i\) [Allowance of \$2,500 or less]{.underline}. When the appropriate
OGC field office awards payments of \$2,500 or less, these tort claims
will be charged out of the appropriate State Office's administrative
allotment budget. Once the appropriate OGC field office returns the
approved claim, along with the form, SF-1145, \"Voucher for Payment
Under Federal Tort Claims Act,\" to the tort claim contact in the State
Office, the tort claim will be processed through the Foundation
Financial Information System (FFIS). The FFIS instructions are set forth
in U.S. Department of Agriculture, National Finance Center, Title IX,
FFIS; Chapter 4, Rural Development; Part 4, Spending; and Part 9,
Appendix I, Rural Development FFIS Processing Matrix for Spending under
the heading, Tort Claims \$2,500. The first step is to reserve the funds
through FFIS before obtaining the claimant's signature. The next step is
for the tort claim contact to forward the completed SF-1145 for the
claimant's signature. Upon receipt of the signed SF-1145 from the
claimant(s), the last step is for the tort claim to be processed as a
payment in accordance with the above referenced FFIS instructions. The
FFIS is in compliance with the Treasury Offset Program mandated by the
Debt Collection Improvement Act of 1996 (Public Law 104-134). The tort
claim contact in the State Office will keep the approved tort claim
package for their files. The State Director in each State Office is
delegated authority to determine, settle, and pay claims for \$2,500 or
less submitted by employees on Form AD-382, "Employee Claim for Loss or
Damage to Personal Property," under the Military Personnel and Civilian
Employees (MPCE) Act, 31 U.S.C. 3721 (see Departmental Regulation
2510-1). The claims are for a specified sum based on damage to an
employee's personal effects that happened while they were on official
duty for the Agency. To qualify for payment under the MPCE Act, the
damage must stem from the following: extraordinary risks in the
performance of duty, such as in connection with a civil disturbance,
common or natural disaster, or efforts to save

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RD Instruction 2042-A

§ 2042.6(d)(1)(i) (Con.)

human life or Government property \[31 U.S.C. 3721b(3)(b)\]. These
claims will be processed through the FFIS for payment as described in
this section. (Revised 02-04-04, PN 370.)

\(ii\) [Allowance of claims over \$2,500]{.underline}. When the
appropriate OGC field office awards payments above \$2,500, the original
claim is returned with FMS Form 197, "Voucher For Payment Where A
Settlement Agreement Has *Not* Been Executed and Attached Or Where A
Final Judgment Is *Not* Attached" or FMS Form 197-A, "Voucher For
Payment Where A Settlement Agreement Has Been Executed and Attached or
Where A Final Judgment is Attached," to the tort claim contact. Then the
tort claim contact forwards the completed FMS 197 to the claimant(s) for
signature. The FMS Form 197-A does not require the claimant(s)
signature(s). Upon receipt of the appropriate form, the tort claim
contact forwards the appropriate form and the original claim and three
copies of the entire claim package to the Tort Claim Officer (TCO) in
the National Office. The TCO prepares a cover letter to go with the
claim package to the Department of Treasury Judgment Fund Group for
their review. If approved by the Department of Judgment Fund Group, the
claim will be paid out of a U.S. Department of Treasury appropriation
account set up for payment of tort claims for all Federal agencies for
settlements exceeding \$2,500. The Administrator for the appropriate
Agency is delegated authority to determine, settle, and pay claims
exceeding \$2,500 submitted by employees under the MPCE Act. The
completed Form AD-382, along with the appropriate paperwork as described
in Departmental Regulation 2510-1, will be forwarded to the TCO in the
National Office for payment. See conditions for payment under paragraph
2042.6(d)(1)(i) above. (Revised 02-04-04, PN 370.)

\(2\) [Claims over \$100,000]{.underline}. If a claim is over \$100,000,
the State Office officials should summarize the claim, complete all
documents and other evidence relevant to the claim, and prepare an
Administrative Report as set forth in paragraph (e) of this section.
Thereafter, the claim, two (2) copies of the Administrative Report, and
three (3) copies of all relevant documents and other evidence should be
returned to the TCO in the National Office for review and submission to
OGC. (Revised 02-04-04, PN 370.)

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RD Instruction 2042-A

§ 2042.6 (Con.)

\(e\) [Administrative Reports]{.underline}. In addition to communicating
with claimants concerning the requirements of filing a claim, Agency
personnel must provide OGC with an appropriate Administrative Report.
This Report should be in narrative form and consist of a memorandum,
with appropriate references or exhibits, setting forth the Agency
position on each of the items or allegations referenced in the claim.
The Administrative Report should contain:

\(1\) A background description of the program involved, referencing
statutory authority and applicable regulations. [NOTE]{.underline}: When
a Rural Development regulation is used for reference purposes, [DO
NOT]{.underline} submit the entire regulation with the Administrative
Report. Supply only those pages or paragraphs which are pertinent.

\(2\) A complete description of the events in question including
references to documents included and a response to every allegation made
in the claim.

\(3\) Agency analysis of who was at fault for losses or damages alleged
in the claim, referencing the opinion of technical experts, either
noninvolved Agency personnel or outside consultants, when necessary.

\(4\) Any policy reasons arguing for or against settlement.

\(5\) An analysis of damages claimed, unless waived by OGC.

\(6\) Any possible USDA claims against the claimant whether or not they
arose out of this incident.

§ 2042.7 [Determination of claims]{.underline}.

\(a\) [Allowance of claims]{.underline}. If a claim is allowed, in full
or in part, OGC provides the Director, Support Services Division,
National Office, with a notice to prepare and process an appropriate
voucher for payment.

\(b\) [Disallowance of claims]{.underline}. If a claim is denied, OGC
notifies the claimant, claimant\'s attorney, or legal representative.
This notification of final denial will include a statement that the
claimant may, if dissatisfied with the USDA action, file suit in the
appropriate United States District Court not later than six months after
the date of mailing of the notification. The National Office and State
Director will be advised of the action taken.

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RD Instruction 2042-A

§ 2042.8 [Payment of claims]{.underline}.

The processing of payment for awards, compromises, or settlements
depends on the amount of payment and will be handled in accordance with
USDA regulations and the advice of OGC.

§ 2042.9 [Suits against employees]{.underline}.

If a Rural Development field employee is served with papers in a suit
arising out of the performance of official duties, he/she will
immediately notify the Regional OGC Attorney. He/she will also notify
the State Director or Assistant Controller, Finance Office, as
appropriate. National Office employees will notify the Assistant
Administrator, Human Resources. Information concerning such suits will
be furnished to the Director, Support Services Division, for referral to
OGC.

§§ 2042.10 -- 2042.50 \[Reserved\]

Attachments: Exhibits A and B

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RD Instruction 2042-A

Exhibit A

## [SAMPLE ADMINISTRATIVE CLAIM]{.underline}

Main Street

Nowhere, California 00000

September 4, 1996

Secretary of Agriculture

Washington, D.C. 20250

Dear Sir:

On August 8, 1996, an employee of your Department, while driving a truck
through the intersection of Route 1 and Main Street, Nowhere,
California, drove through a red light and struck my car. My car was
damaged and I was injured.

As the accident was the fault of your employee, I demand the sum of
\$1,500 for damage to my car and the sum of \$15,000 for my personal
injuries, which consisted of a broken leg.

Sincerely yours,

John J. Doe

[THIS IS AN EXAMPLE OF A TYPICAL ADMINISTRATIVE CLAIM FILED UNDER
THE]{.underline}

[FEDERAL TORT CLAIMS ACT]{.underline}.

(Sample response may be found in Exhibit B.)

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RD Instruction 2042-A

Exhibit B

## [SAMPLE RESPONSE TO DEFECTIVE CLAIM]{.underline}

Henry F. Jones

Attorney at Law

Route 1

Nowhere, California 00000

Dear Mr. Jones:

Subject: Claim of John J. Doe

This is to acknowledge receipt of the Standard Form 95 you submitted on\
behalf of your client, John J. Doe. The Federal Tort Claims Act (FTCA),
28 U.S.C. 2671-80 and the regulations issued pursuant thereto, 7 CFR
1.51 and 28 CFR 14 set forth the manner in which an administrative claim
under the FTCA must be filed. The Standard Form 95 which you submitted
on behalf of your client does not constitute an administrative claim
under the FTCA.

Pursuant to the provisions of 28 CFR 14.2, an administrative claim must
be for money damages in a sum certain to be accepted and considered by
the Office of the General Counsel (OGC). The claim submitted on behalf
of your client is not for money damages in a sum certain to be accepted
and considered by OGC. Furthermore, pursuant to the provisions of 28 CFR
14.3 an administrative claim for injury to or loss of property may be
submitted by the owner of the property or his duly authorized agent or
legal representative. A claim for personal injury may be submitted by
the injured person or his duly authorized agent or legal representative.
Therefore, in order to file an administrative claim under the FTCA it
will be necessary for you to submit a claim for money damages in a sum
certain to be accepted and considered by OGC signed by the claimant or
signed by a duly authorized agent or legal representative and
accompanied by proof of authorization to submit the claim.

It will be necessary for you to substantiate the claims of personal
injury and property damage. The provisions of 28 CFR 14.4 (copy
enclosed) set forth the manner in which claims are to be substantiated.
To the extent that the listing of evidence fails to be appropriate for
the type of injuries or damages claimed by your client, please supply
analogous material sufficient to substantiate each element of your
client\'s damages.

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RD Instruction 2042-A

Exhibit B

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Mr. Jones Page 2

The OGC has been delegated authority to consider and determine claims
under the FTCA. Upon receipt of an administrative claim sufficient to
meet the requirements of the FTCA and appropriate substantiation of
damages, they will be in a position to issue a determination upon your
client\'s claim. Enclosed for your use are two (2) copies of Standard
Form 95.

Sincerely,

AGENCY OFFICIAL

Enclosures

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