CHAPTER 171 —TORT CLAIMS PROCEDURE
Senate Revision Amendment
As printed in this report, this chapter should have read "173" and not "171". It was properly numbered "173" in the bill. However, the chapter was renumbered "171", without change in its section numbers, by Senate amendment. See 80th Congress Senate Report No. 1559.
Editorial Notes
Amendments
1966—
1959—
§2671. Definitions
As used in this chapter and
"Employee of the government" includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under
"Acting within the scope of his office or employment", in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §941 (Aug. 2, 1946, ch. 753, §402,
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in
Editorial Notes
Amendments
2000—
1988—
1981—
1966—
1949—Act May 24, 1949, corrected spelling of "office".
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1981 Amendment
Amendment by
Effective Date of 1966 Amendment
Amendment by
Short Title
This chapter is popularly known as the Federal Tort Claims Act. The Federal Tort Claims Act was previously the official short title of title IV of act Aug. 2, 1946, ch. 753,
Severability
Law Enforcement Officer Acting Within Scope of Office or Employment
"(a)
"(1) the term 'crime of violence' has the meaning given that term in
"(2) the term 'law enforcement officer' means any employee described in subparagraph (A), (B), or (C) of
"(b)
"(1) protect an individual in the presence of the officer from a crime of violence;
"(2) provide immediate assistance to an individual who has suffered or who is threatened with bodily harm; or
"(3) prevent the escape of any individual who the officer reasonably believes to have committed in the presence of the officer a crime of violence."
Congressional Findings and Purposes
"(a)
"(1) For more than 40 years the Federal Tort Claims Act [see Short Title note above] has been the legal mechanism for compensating persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment.
"(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment.
"(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for compensating persons injured by the tortious conduct of Federal employees.
"(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees.
"(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.
"(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts.
"(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated that the Congress is in the best position to determine the extent to which Federal employees should be personally liable for common law torts, and that legislative consideration of this matter would be useful.
"(b)
§2672. Administrative adjustment of claims
The head of each Federal agency or his 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 designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of the agency the authority to make such award, compromise, or settlement. Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of subchapter IV of
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.
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
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.
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §921 (Aug. 2, 1946, ch. 753, §403,
The phrase "accruing on and after January 1, 1945" was omitted because executed as of the date of the enactment of this revised title.
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in
Editorial Notes
Amendments
1990—
1966—
1959—
1950—Act Sept. 23, 1950, struck out requirement for specific authorization for payment of tort claims in appropriation acts.
1949—Act Apr. 25, 1949, inserted "accruing on or after January 1, 1945" after "United States" in first par.
Act May 24, 1949, substituted "2677" for "2678" in third par.
Statutory Notes and Related Subsidiaries
Effective Date of 1966 Amendment
Laws Unaffected
Act Aug. 2, 1946, ch. 753, title IV, §424(b),
§2673. Reports to Congress
The head of each federal agency shall report annually to Congress all claims paid by it under
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §922 (Aug. 2, 1946, ch. 753, §404,
Changes were made in phraseology.
Statutory Notes and Related Subsidiaries
Repeal
§2674. Liability of United States
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.
With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.
With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter.
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §931(a) (Aug. 2, 1946, ch. 753, §410(a),
Section constitutes the liability provisions in the second sentence of
Other provisions of
Changes were made in phraseology.
Senate Revision Amendment
For Senate amendment to this section, see 80th Congress Senate Report No. 1559, amendment No. 60.
Editorial Notes
Amendments
1988—
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
§2675. Disposition by federal agency as prerequisite; evidence
(a) 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 office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a 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, cross-claim, or counterclaim.
(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
(c) Disposition of any claim by the Attorney General or other head of a federal agency shall not be competent evidence of liability or amount of damages.
(June 25, 1948, ch. 646,
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §931(b) (Aug. 2, 1946, ch. 753, §410(b),
Section constitutes all of section 931(b), except the first sentence, of title 28, U.S.C., 1940 ed. The remainder of such section 931(b) is incorporated in
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in
Editorial Notes
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.
Amendments
1966—Subsec. (a).
Subsec. (b).
1949—Subsec. (b). Act May 24, 1949, substituted "section" for "subsection".
Statutory Notes and Related Subsidiaries
Effective Date of 1966 Amendment
Amendment by
§2676. Judgment as bar
The judgment in an action under
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §931(b) (Aug. 2, 1946, ch. 753, §410(b),
Section constitutes the first sentence of
Changes were made in phraseology.
Senate Revision Amendment
This section was eliminated by Senate amendment. See 80th Congress Senate Report No. 1559.
§2677. Compromise
The Attorney General or his designee may arbitrate, compromise, or settle any claim cognizable under
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §934 (Aug. 2, 1946, ch. 753, §413,
Changes were made in phraseology.
Senate Revision Amendment
This section was renumbered "2676" by Senate amendment. See 80th Congress Senate Report No. 1559.
Editorial Notes
Amendments
1966—
Statutory Notes and Related Subsidiaries
Effective Date of 1966 Amendment
Amendment by
§2678. Attorney fees; penalty
No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to
Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both.
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §944 (Aug. 2, 1946, ch. 753, §422,
Words "shall be guilty of a misdemeanor" and "shall, upon conviction thereof", in the second sentence, were omitted in conformity with revised title 18, U.S.C., Crimes and Criminal Procedure (H.R. 1600, 80th Cong.). See sections 1 and 2 of said revised title 18.
Changes were made in phraseology.
Senate Revision Amendment
This section was renumbered "2677" by Senate amendment. See 80th Congress Senate Report No. 1559.
Editorial Notes
Amendments
1966—
Statutory Notes and Related Subsidiaries
Effective Date of 1966 Amendment
Amendment by
§2679. Exclusiveness of remedy
(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under
(b)(1) The remedy against the United States provided by
(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government—
(A) which is brought for a violation of the Constitution of the United States, or
(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.
(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.
(d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.
(3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) 1 of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.
(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to
(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to
(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.
(e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect.
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §945 (Aug. 2, 1946, ch. 753, §423,
Changes were made in phraseology.
Senate Revision Amendment
The catchline and text of this section were changed and the section was renumbered "2678" by Senate amendment. See 80th Congress Senate Report No. 1559.
Editorial Notes
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (d)(3), are set out in the Appendix to this title.
Amendments
1988—Subsec. (b).
Subsec. (d).
1966—Subsec. (b).
1961—
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
"(a)
"(b)
"(c)
"(d)
Effective Date of 1966 Amendment
Amendment by
Effective Date of 1961 Amendment
1 So in original. Probably should be a reference to Rule 4(i).
§2680. Exceptions
The provisions of this chapter and
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and
(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law..1
(d) Any claim for which a remedy is provided by
(e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of
(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.
[(g) Repealed. Sept. 26, 1950, ch. 1049, §13 (5),
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and
(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
(l) Any claim arising from the activities of the Tennessee Valley Authority.
(m) Any claim arising from the activities of the Panama Canal Company.
(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.
(June 25, 1948, ch. 646,
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §943 (Aug. 2, 1946, ch. 753, §421,
Changes were made in phraseology.
Senate Revision Amendment
Sections 2680 and 2681 were renumbered "2679" and "2680", respectively, by Senate amendment. See 80th Congress Senate Report No. 1559.
Editorial Notes
References in Text
The date of the enactment of this proviso, referred to in subsec. (h), means Mar. 16, 1974, the date on which
Panama Canal Company, referred to in subsec. (m), deemed to refer to Panama Canal Commission, see
Amendments
2006—Subsec. (d).
2000—Subsec. (c).
1974—Subsec. (h).
1959—Subsec. (n).
1950—Subsec. (g). Act Sept. 26, 1950, §13(5), repealed subsec. (g).
Subsec. (m). Act Sept. 26, 1950, §2, substituted "Panama Canal Company" for "Panama Railroad Company".
1949—Subsec. (m). Act July 16, 1949, added subsec. (m).
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Amendment by
Effective Date of 1959 Amendment
Amendment by
Effective Date of 1950 Amendment
Amendment by act Sept. 26, 1950, to take effect upon effective date of transfer to the Panama Canal Company, pursuant to the provisions of section 256 of the former Canal Zone Code, as added by section 10 of that act, of the Panama Canal together with the facilities and appurtenances related thereto, see section 14 of act Sept. 26, 1950.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see
Coast Guard transferred to Department of Transportation and all functions, powers, and duties, relating to Coast Guard, of Secretary of the Treasury and of all other offices and officers of Department of the Treasury transferred to Secretary of Transportation by
For transfer of certain functions relating to claims and litigation, insofar as they pertain to the Air Force, from Secretary of the Army to Secretary of the Air Force, see Secretary of Defense Transfer Order No. 34 [§1a(2)(4)], eff. July 1, 1949.
Northern Mariana Islands—Applicability of Subsec. (k)
Termination of National Emergency
Declaration of national emergency in effect on Sept. 14, 1976, was terminated two years from that date by
Applicability of Subsec. (j)
Joint Res. July 3, 1952, ch. 570, §1(a)(32),
Joint Res. July 3, 1952, ch. 570, §6,