[Federal Register: July 20, 2000 (Volume 65, Number 140)]
[Rules and Regulations]
[Page 44945-44947]

[[Page 44945]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 177

RIN 3206-AI70

Administrative Claims Under the Federal Tort Claims Act

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations for administrative claims filed under the Federal Tort
Claims Act. The final regulations will reflect the changes for filing
administrative claims with OPM for the loss of or damage to property,
personal injury, or death resulting from the negligent or wrongful act
or omission of its employees while acting within the scope of their
office or employment.

EFFECTIVE DATE: August 21, 2000.

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: On June 22, 1999, the Office of Personnel
Management (OPM) published proposed regulations (64 FR 33326) on the
Federal Tort Claims Act. The Federal Tort Claims Act provides that the
United States 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 Federal Tort Claims Act authorizes the head of each
Federal agency, or his or her designee, the authority to consider,
compromise, and settle any claim 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 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 Department of Justice (DOJ) administers the Federal Tort Claims
Act for the United States Government. The DOJ has authorized each
Federal agency to issue regulations and establish procedures for
implementing the Federal Tort Claims Act. The Director of OPM has
delegated the responsibility for this function to the General Counsel
of OPM. However, any award, compromise, or settlement in excess of
$25,000, can be effected only with the prior written approval of the
Attorney General.
    The final regulations on the Federal Tort Claims Act have been
updated and revised in consistency with the DOJ regulations at 28 CFR
part 14. In addition, the final regulations will include revisions to
reflect the changes for filing administrative claims with OPM and the
delegation of authority for this function within OPM by the General
Counsel.
    During the comment period, OPM did not receive any comments on the
proposed regulations.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic
impact on a substantial number of small entities (including small
businesses, small organizational units, and small governmental
jurisdictions), since it only applies to Federal employees and
agencies.

List of Subjects in 5 CFR Part 177

    Claims.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is revising Part 177 of title 5 of the Code of
Federal Regulations as follows:

PART 177--ADMINISTRATIVE CLAIMS UNDER THE 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.

    The regulations in this part 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.
    (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 the claim is received by OPM. When a claim is mistakenly
presented to OPM, OPM will transfer the claim to the appropriate
Federal agency, if ascertainable, and advise the

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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 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 the applicable State law.
    (d) A claim for loss totally compensated by an insurer with the
rights to subrogate may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights to subrogate 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 to subrogate, he or she will present with
the claim appropriate evidence that he or she has the rights to
subrogate.
    (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 from 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. On written request, OPM will make available to
the claimant a copy of the report of the examining physician employed
by the United States, provided the claimant has furnished OPM with the
report referred to in the first sentence of this subparagraph. In
addition, the claimant must have made or agrees to make available to
OPM all other physician's reports previously or thereafter made of the
physical or mental condition that 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.
    (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

[[Page 44947]]

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 can 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 will 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 Federal Government whose act or
omission gave rise to the claim, by reason of the same subject matter.

[FR Doc. 00-18344 Filed 7-19-00; 8:45 am]
BILLING CODE 6325-01-P