change or modify any such determination. This authority may be redelegated by the Secretary concerned or his designee. Any determination made under this section with regard to enlisted members is final and is not subject to review by any accounting officer of the United States or a court, unless there is fraud or gross negligence. (As amended Pub. L. 90-207, § 1(3), Dec. 16, 1967, 81 Stat. 651; Pub. L. 92-129, title II, § 204, Sept. 28, 1971, 85 Stat. 358; Pub. L. 93-64, title I, § 105, July 9, 1973, 87 Stat. 148; Pub. L. 93-419, § 3(6), Sept. 19, 1974, 88 Stat. 1152; Pub. L. 96-343, § 4(a) (1), (2), Sept. 8, 1980, 94 Stat. 1125; Pub. L. 96-513, title V, § 516(10), Dec. 12, 1980, 94 Stat. 2938; Pub. L. 96-579, §§ 6(a)-(c), 7, Dec. 23, 1980, 94 Stat. 3367, 3368; Pub. L. 97-22, § 11(b)(2), July 10, 1981, 95 Stat. 138; Pub. L. 98-94, Title IX, § 907(a), Sept. 24, 1983; 97 Stat. 637; Pub. L. 98-525, Title VI, § 602(c), 604(a), Oct. 19, 1984, 98 Stat. 2534, 2537; Pub. L. 99-145, title VI, § 604(a), 605 (a), Title VIII, § 809(b), Title XIII, § 1303(b)(6), Nov. 8, 1985, 99 Stat. 638, 681, 740; Pub. L. 99-227, § 1, Dec. 28, 1985, 99 Stat. 1745.) (TITLE 38.-VETERANS' BENEFITS) § 3102. Waiver of recovery of claims by the United States (a) There shall be no recovery of payments or overpayments (or any interest thereon) of any benefits under any of the laws administered by the Veterans' Administration whenever the Administrator determines that recovery would be against equity and good conscience, if an application for relief is made within 180 days from the date of notification of the indebtedness by the Administrator to the payee, or within such longer period as the Administrator determines is reasonable in a case in which the payee demonstrates to the satisfaction of the Administrator that such notification was not actually received by such payee within a reasonable period after such date. (b) With respect to any loan guaranteed, insured, or made under chapter 37 of this title, the Administrator may waive payment of an indebtedness to the Veterans' Administration by the veteran (as defined in sections 101 and 1801), or his spouse, following default and loss of the property, where the Administrator determines that collection of such indebtedness would be against equity and good con science. (c) The Administrator may not exercise his authority under subsection (a) or (b) of this section to waive recovery of any payment or the collection of any indebtedness (or any interest thereon) if, in his opinion, there exists in connection with the claim for such waiver an indication of fraud, misrepresentation, material fault, or lack of good faith on the part of the person or persons having an interest in obtaining a waiver of such recovery or the collection of such indebtedness (or any interest thereon). (d) No certifying or disbursing officer shall be liable for any amount paid to any person where the recovery of such amount is waived under subsection (a) or (b). (e) Where the recovery of a payment or overpayment made from the National Service Life Insurance Fund or United States Government Life Insurance Fund is waived under this section, the fund from which the payment was made shall be reimbursed from the National Service Life Insurance appropriation or the military and naval insurance appropriation, as applicable. (Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1230; Pub. L. 92-328, Title II, § 202(2), June 30, 1972, 86 Stat. 396; Pub. L. 96-466. Title VI, 605(c)(3), Oct 17, 1980, 94 Stat. 2211; Pub. L. 97-306, Title IV, 407(a), Oct. 14, 1982, 96 Stat. 1445.) THE FEDERAL TORT CLAIMS PROVISIONS OF TITLE 28, The provisions of the Federal Tort Claims Act (act of Aug. 2, 1946, 60 Stat. 842) have been restated and codified as a part of title 28 of the United States Code. Title 28 was enacted into positive law by the act of June 25, 1948, ch. 646, § 1, 62 Stat. 869. Since the provisions of the Tort Claims Act as originally enacted have been superseded by the tort claims provisions now contained in the codified title, the relevant provisions of title 28 are included in this booklet. Those sections are as follows: § 1346. United States as defendant (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to section 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. (b) Subject to the provisions of chapter 171 of this title, the district courts, together with the U.S. district court for the District of the Canal Zone and the district court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, 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 occured. (c) The jurisidiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section. (d) The district courts shall not have jurisdiction under this section of any civil action or claim for a pension. (e) The district courts shall have original jurisdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1954. (f) The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States. (June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, § 2(a), 63 Stat. 62; May 24, 1949, ch. 139, § 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ch. 655, § 50(b), 65 Stat. 727; July 30, 1954, ch. 648, § 1, 68 Stat. 589; July 7, 1958, Pub. L. 85-508, § 12(e), 72 Stat, 348; Aug. 30, 1964, Pub. L. 88-519, 78 Stat. 699; Nov. 2, 1966, Pub. L. 89-719, title II, § 202(a), 80 Stat. 1148; July 23, 1970, Pub. L. 91-350, § 1(a), 84 Stat. 449; Oct. 25, 1972, Pub. L. 92-562, § 1, 86 Stat. 1176; Oct. 4, 1976, Pub. L. 94455, title XII, § 1204(c)(1), title XIII, § 1306(b)(7), 90 Stat. 1697, 1719; Nov. 1, 1978, Pub. L. 95-563, § 14(a), 92 Stat. 2389; Apr. 2, 1982, Pub. L. 97-164, title I, § 129, 96 Stat. 39; Sept. 3, 1982, Pub. L. 97-248, title IV, § 402(c)(17), 96 Stat. 669.) § 2401. Time for commencing action against United States (a) Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 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. (June 25, 1948, ch. 646, 62 Stat. 971; Apr. 25, 1949, ch. 92, § 1, 63 Stat. 62; Sept. 8, 1959, Pub. L. 86-238, § 1(3), 73 Stat. 472; July 13, 1966, Pub. L. 89-506, § 7, 80 Stat. 307; Nov. 1, 1978, Pub. L. 95-563, § 14(b), 92 Stat. 2389.) Sec. Chapter 171-TORT CLAIMS PROCEDURE 2671. Definitions. 2672. Administrative adjustment of claims. 2673. Reports to Congress. 2674. Liability of United States. 2675. Disposition by federal agency as prerequisite evidence. 2676. Judgment as bar. 2677. Compromise. 2678. Attorney fees; penalty. 2679. Exclusiveness of remedy. 2680. Exceptions. § 2671 Definitions 1 As used in this chapter and sections 1346(b) and 2401(b) of this title, the term "Federal agency" includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. 1 The application of these provisions to particular agencies or employees may be determined by separate statutes: e.g. Energy Security Act, 42 U.S.C. 8786 (1976 ed. Sup. IV) (Synfuels Corporation shall be treated as if it were a Federal agency); Panama Canal Act of 1979, 22 U.S.C. 3761(e) (1976 ed. Sup. V) (claims arising out of operation of the Panama Canal are not cognizable under Federal Tort Claims provisions); Peace Corps Act, 22 U.S.C. 2504(h) (1976_ed. Sup. V) (Peace Corps Volunteers are covered employees); Comprehensive Employment and Training Act, 29 U.S.C. 938(a) (3) (1976 ed. Sup. V) (C.E.T.A. enrollees are covered employees). "Employee of the Government" includes 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 section 316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. "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 section 101(3) of title 32, means acting in line of duty. (June 25, 1948, ch. 646, 62 Stat. 982; May 24, 1949, ch. 139, § 124, 63 Stat. 106; July 18, 1966, Pub. L. 89-506, § 8, 80 Stat. 307; Dec. 29, 1981, Pub. L. 97-124, § 1, 95 Stat. 1666.) § 2672. Administrative adjustment of claims 2 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. 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 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, or settlements under this chapter. 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, 62 Stat. 983; Apr. 25, 1949, ch. 92, § 2(b), 63 Stat. 62; May 24, 1949, ch. 139, § 125, 63 Stat. 106; Sept. 23, 1950, ch. 1010, § 9, 64 Stat. 987; Sept. 8, 1959, Pub. L. 86-238, § 1(1), 73 Stat. 471; July 18, 1966, Pub. L. 89-506, §§ 1, 9(a), 80 Stat. 306, 308.) 2 The receipt of a settlement or award may affect an individual's right to other Federal compensation of benefits e.g. Veterans' Administration disability compensation, 38 U.S.C. 351 (1976 ed.): compensation for vessels seized by the United States pursuant to the Merchant Marine Act of 1936, 46 U.S.C. 1242(d) (1976 ed.) or compensation for communications equipment seized by the United States pursuant to the Communications Act of 1934, 47 U.S.C. 606(e) (1976 ed.). § 2673. Repealed. Pub. L. 89-348, § 1(1), Nov. 8, 1965, 79 Stat. 1310 (The section as contained in the Act of June 25, 1948, ch. 646, 62 Stat. 983, required that the head of each Federal agency shall report annually to Congress all claims paid by it under section 2672 of this title, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim.) § 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. (June 25, 1948, ch. 646, 62 Stat. 983.) § 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 6 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, 62 Stat. 983; May 24, 1949, ch. 139, § 126, 63 Stat. 107; July 18, 1966, Pub. L. 89-506, § 2, 80 Stat. 306.) § 2676. Judgment as bar The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim. (June 25, 1948, ch. 646, 62 Stat. 984.) § 2677. Compromise The Attorney General or his designee may arbitrate, compromise, or settle any claim cognizable under section 1346(b) of this title, after the commencement of an action thereon. (June 25, 1948, ch. 646, 62 Stat. 984; July 18, 1966, Pub. L. 89-506, § 3, 80 Stat. 307.) |