[Federal Register: June 22, 1999 (Volume 64, Number 119)]
[Proposed Rules]               
[Page 33226-33228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn99-26]                         

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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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.

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    (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.

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    (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