the head of each "Federal agency," defined to include governmental corporations as well as the departments and establishments. Such power may also be delegated. (ii) "Employee of the Government" in the present bill is defined to include uncompensated or temporary officers or employees of the United States. PRESENT BILL TITLE II-ADMINISTRATIVE ADJUST MENT OF TORT CLAIMS AGAINST THE UNITED STATES SEC. 201. Subject to the limitations of this Act, authority is hereby conferred upon the head of each Federal agency, or his designee for the purpose, acting on behalf of the United States, to consider, ascertain, adjust, determine, and settle any claims against the United States, for money only, accruing after the date of approval of this Act, on account of damage to or loss of property or on account of personal injury or death, where the total amount of the claim does not exceed $1,000, 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 for such damage, loss, injury or death, in accordance with the law of the place where the act or omission occurred. Subject to the provisions of title III of this Act, any such award or determination shall be final and conclusive on all officers of the Government, except when procured by means of fraud, notwithstanding any other provision of law to the contrary. Any award made to any claimant pursuant to this section, and any award, compromise, or settlement of any claim cognizable under this Act made by the Attorney General pursuant to section 304, shall be paid by the head of the Federal agency concerned out of appropriations that may be made therefor, which appropriations are hereby authorized. 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 by the claimant 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. H. R. 5373 TITLE I-ADMINISTRATIVE ADJUSTMENT OF TORT CLAIMS AGAINST THE UNITED STATES SEC. 1. Subject to the limitations of this Act, authority is hereby conferred upon the head of each department or independent establishment, acting on behalf of the Government of the United States, to consider, ascertain, adjust, determine, and settle any claim accruing after the date of approval of this Act on account of damages to or loss of property, or on account of personal injuries, where the total amount of the claim does not exceed $1,000, caused by the negligent or wrongful act or omission of any officer or employee of the United States, including any member of the military and naval forces, while acting within the scope of his office or employment. If the amount of the award does not exceed $500, such determination shall be final and conclusive on all officers of the Government, notwithstanding any other provision of law to the contrary. If the amount of the award exceeds the sum of $500, the award shall be submitted by the head of the department or independent establishment making the same to the Attorney General for review. In such event, the determination of the Attorney General shall be final and conclusive on all officers of the Government, notwithstanding any other provision of law to the contrary. Such amount as may be found to be due to any claimant shall be paid by the head of the department or independent establishment concerned out of appropriations that may be made therefor, which appropriations hereby authorized. are SEC. 2. The Attorney General is authorized to adopt and promulgate rules and regulations for the enforcement and administration of this title. Such rules may prescribe the procedure and principles of decision, including construction and interpretation of this Act and questions of subrogation, to be followed by the various departments and independent establishments in considering, ascertaining, adjusting, or determining claims under this title, and may include a schedule of the amount of compensation to be awarded for specific physical injuries. COMMENTS The present bill differs from H. R. 5373 and H. R. 7236 in the following respects: (2) Claims which may be administratively adjusted are extended to include claims for death as well as for personal injury. (ii) While H. R. 5373 indicated that local law would determine liability of the United States in suits on tort claims, it was not so provided with respect to administrative adjustment of tort claims. The present bill applies local law to administrative adjustments as well as to suits. (iii) It is made clear that administrative awards, while generally final and conclusive, may be attacked if procured by fraud. (iv) Provision that the Attorney General shall review awards exceeding $500 is omitted. Such a review would involve to a considerable extent duplication of investigation, study, or other consideration of the claim. The amount involved in this class of cases would appear to be insufficient to justify the added expense required by such administrative review. (v) The acceptance of the award by the claimant constitutes a complete release of his claim not only against the United States but also against the delinquent employee. It seems proper for the United States alone to bear the onus, within limits, of damages caused by the negligent or wrongful conduct of its employees acting within the scope of their authority. (vi) Since the present bill makes no provision for review by the Attorney General of administrative awards, the Attorney General's rule-making power (sec. 2 of H. R. 5373) is likewise omitted. TITLE III-SUITS ON TORT CLAIMS TITLE II-SUITS AGAINST THE UNITED AGAINST THE UNITED STATES SEC. 301. Subject to the provisions of this Act, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States district courts for the Territories and possessions of the United STATES ON TORT CLAIMS SEC. 201. That subject to the provisions of this Act and the Judicial Code, the Court of Claims and the district courts, including the United States Dis-' trict Court for Hawaii sitting without a jury, shall have concurrent jurisdiction to hear and determine claims against PRESENT BILL States, sitting as a court of claims without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, in any amount not exceeding the sum of $7,500, accruing after the date of approval of this Act, on account of damage to or loss of property or on account of 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 for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this Act, the United States shall be liable in respect of such claims to the same claimants, in the same manner and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for punitive damages, interest, or costs. The judgment in such an action shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim. No suit shall be instituted pursuant to this section upon a claim presented to any Federal agency pursuant to title II of this Act unless such Federal agency has made final disposition of the claim: Provided, That the claimant may, upon fifteen days' notice given in writing, withdraw the claim from consideration of the Federal agency and commence suit thereon pursuant to this section: Provided further, That as to any claim so disposed of or so withdrawn, no suit shall be instituted pursuant to this section for any sum in excess of the amount of the claim presented to the Federal agency, except where the increased amount of the claim is shown to be based upon newly discovered evidence not reasonably discoverable at the time of presentation of the claim to the Federal agency or upon evidence of intervening facts, relating to the amount of the claim. Disposition of any claim made pursuant to title II of this Act shall not be competent evidence of liability or amount of damages in proceedings on such claim pursuant to this section. H. R. 5373 the United States, not exceeding the sum of $7,500, on account of damages to or loss of property or on account of personal injuries, or death, caused by the negligence or wrongful act or omission of any officer or employee of the United States, including any member of the military or naval forces of the United States, while acting within the scope of his office or employment. In respect to such claims the United States shall be liable to the same extent and in the same manner as a private individual under like circumstances, except that the United States shall not be liable for punitive damages. SEC. 204. Compensation for death shall be awarded and paid to the widow or widower, or if there is no widow or widower, then to the children, share and share alike; if there be no widow or widower or children, then to any parent, including an adopted parent or a stepfather or stepmother, grandparent, brother, sister, uncle, aunt, nephew, or niece, who may have been wholly or partially dependent for support on the deceased at the time of the death, in such proportions as the court shall decree, or as may be agreed upon between the parties. The term "children" shall include an adopted child, a stepchild, and an illegitimate child. In case the claim is for the death of the father, only such illegitimate child shall be included whose paternity had been duly adjudicated during the lifetime of the parent or had been acknowledged in writing by him. SEC. 302. No award shall be made or recovery allowed in the event that the person in control of such property, or the person injured, or the deceased, as the case may be, is guilty of contributory negligence; or in the event that the damage, loss, injury, or death is proximately caused by the intoxication or willful misconduct of such person. SEC. 304. No recovery shall be had for the aggravation of personal injury or for death resulting therefrom, caused by an unreasonable neglect or refusal of claimant to submit to or procure medical or surgical treatment. SEC. 308. In the event that any claimant under this Act dies prior to the making of any award, or the rendering of any judgment hereunder, or prior to the payment thereof, and the amount of such award or judgment does not exceed the sum of $200, payment thereof may be made directly to the person or persons designated in section 204 hereof. COMMENTS (i) In lieu of concurrent jurisdiction in the United States district courts and the Court of Claims, the present bill vests exclusive original jurisdiction in the district courts, sitting as a court of claims without a jury. The district courts have for many years considered and determined such questions as negligence, contributory negligence, causation, and the like in private suits for personal injury or property damage. Moreover, the district court sits in only one State and is familiar with the local laws and decisions which are to govern the determination of tort claims against the United States. This area of jurisprudence would be new to the Court of Claims, and little would be gained by burdening that court and its commissioners with the original determination of such matters. (ii) Although not expressly so stated, H. R. 5373 would apparently subject the United States to tort liability, within the limitations of the bill, in accordance with the law of the place where the act or omission occurred. The present bill expressly provides for such conformance, and also makes the United States liable to the same claimants as a private individual under like circumstances. This would render the local law applicable not only to the merits of the claim, but also to the defenses of contributory negligence, willful misconduct, or aggravation of damages, and to the distribution or disposition of the judgment in cases of death of the claimant. Sections 204, 302, 304, and 308 of H. R. 5373 therefore become unnecessary. (iii) The present bill immunizes the United States not only from the assessment of punitive damages but also from interest or costs. (iv) Under the present bill, the judgment rendered will constitute a bar to further action upon the same claim not only against the Government but also against the employee whose wrongful conduct gave rise to the claim. (v) Tort jurisdiction is given not only to the District Court for Hawaii but to those for all the Territories and possessions of the United States. (vi) The present bill precludes the institution of suit upon a claim submitted to a Federal agency for an administrative award, unless the claim is finally disposed of by the agency, or is withdrawn therefrom by the claimant upon 15 days' notice. In either case, suit may not be brought for an amount in excess of the claim presented to the Federal agency, unless the increased amount is based upon newly discovered evidence or intervening facts. Disposition of the claim by the Federal agency is not to be competent evidence of liability or of the amount of damages, in a suit on the claim. PRESENT BILL SEC. 302. In actions under this title, the forms of process, writs, pleadings, and motions, and the practice and procedure, shall be in accordance with the rules promulgated by the Supreme Court pursuant to the Act of June 19, 1934 (ch. 651, 48 Stat. 1064); and the same provisions for counterclaim and H. R. 5373 SEC. 202. At the instance of the Attorney General or claimant or the appropriate United States attorney, the deposition of any witness may be taken in behalf of the United States or of the claimant, as the case may be, at any time, either before or after the institution of any action hereunder. Reason PRESENT BILL H. R. 5373 set-off and for payment of judgments able notice of the time and place of the shall be applicable as in cases brought in the United States district courts under the Act of March 3, 1887 (24 Stat. 505). taking of such deposition shall be given to the claimant or his attorney. The claimant or his attorney shall have the privilege of cross-examining such witness. Any deposition so taken may be used by either party in any action arising out of such claim. SEC. 305. The Attorney General, the appropriate United States attorney, or the department or independent establishment before which a claim is filed may require any claimant for damages for personal injury to submit to examination by one or more medical officers of the department or independent establishment under whose activities the claim arises or, with the consent and approval of the head of any other department or independent establishment, by one or more medical officers of such department or independent establishment, or by other duly qualified physicians designated or approved by the Department of Justice. Such examinations shall be had as frequently and at such times or places as may be reasonably required. For failure to submit to such examination or examinations, the court or the department or the independent establishment, as the case may be, in its discretion may dismiss the claim in whole or in part. At the request of the injured person a duly qualified physician, designated by him, may be present and participating at such examination or examinations. Counsel for such person may likewise be present at such examination. In the event that the injured person is required to travel to the place where the examination takes place, he shall be paid his reasonable transportation and subsistence expenses. COMMENTS As already stated, the present bill provides for exclusive original jurisdiction in the United States district courts of tort suits against the United States (sec. 301). Section 302 of the present bill makes the practice and procedure in such suits subject to the Rules of Civil Procedure for the District Courts of the United States. This dispenses with the need for specific mention of such matters as the taking of depositions and physical examination of claimants (secs. 202 and 305 of H. R. 5373). The provisions for counterclaim, set-off, and payment of judgments are to be the same as those applicable to contract suits in the district courts under the Tucker Act (Act of March 3, 1887, 24 Stat. 505, 28 U. S. C., Sec. 41 (20)). |