§ 513. Retroactive payment of pay and allowances delayed by administrative error or oversight

Under regulations prescribed by the Secretary, the Coast Guard may authorize retroactive payment of pay and allowances, including selective reenlistment bonuses, to enlisted members if entitlement to the pay and allowances was delayed in vesting solely because of an administrative error or oversight.

(Added Pub. L. 100-448, Sept. 28, 1988, 102 Stat. 1844, § 13(a).)

(TITLE 32.-NATIONAL GUARD)

§ 716. Claims for overpayment of pay and allowances, and travel and transportation allowances

(a) A claim of the United States against a person arising out of an erroneous payment of any pay or allowances made before, on, or after October 2, 1972, or arising out of an erroneous payment of travel and transportation allowances, to or on behalf of a member or former member of the National Guard, the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part by—

(1) the Director of the Office of Management and Budget; or (2) the Secretary concerned, as defined in section 101(5) of title 37, when

(A) the claim is in an amount aggregating not more than $1,500; and

(B) the waiver is made in accordance with standards which the Director of the Office of Management and Budget shall prescribe.

(b) The Director of the Office of Management and Budget or the Secretary concerned, as the case may be, may not exercise his authority under this section to waive any claim

(1) if, in his opinion, there exists, in connection with the claim, an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member or any other person having an interest in obtaining a waiver of the claim; or

(2) if application for waiver is received in his office after the expiration of three years immediately following the date on which the erroneous payment was discovered.

(c) A person who has repaid to the United States all or part of the amount of a claim, with respect to which a waiver is granted under this section, is entitled, to the extent of the waiver, to refund, by the department concerned at the time of the erroneous payment, of the amount repaid to the United States, if he applies to that department for that refund within two years following the effective date of the waiver. The Secretary concerned shall pay from current applicable appropriations that refund in accordance with this section.

(d) In the audit and settlement of accounts of any accountable officer or official, full credit shall be given for any amounts with respect to which collection by the United States is waived under this section. (e) An erroneous payment, the collection of which is waived under this section, is considered a valid payment for all purposes.

(f) This section does not affect any authority under any other law to litigate, settle, compromise, or waive any claim of the United States.

(Added Pub. L. 92-453; § 2(1), Oct. 2, 1972, 86 Stat. 759, and amended Pub. L. 96-513, Title V, §515(9), Dec. 12, 1980, 94 Stat. 2937; Pub. L. 99-224, §3(a), Dec. 28, 1985, 99 Stat. 1742; Pub. L. 102-190, §657(c) Dec. 5, 1991, 105 Stat. 1393; Pub. L. 104-316, § 105(b), Oct. 19, 1996, 110 Stat. 3835.)

(2) The Secretary concerned may make such determinations as may be necessary to administer this section, including determinations of dependency and relationship. When warranted by the circumstances, the Secretary concerned may reconsider and change or modify any such determination. The authority of the Secretary concerned under this subsection may be determination. The authority of the Secretary concerned under this subsection may be delegated. Any determination made under this section with regard to a member of the uniformed services 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.

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(Pub. L. 93-64, § 105, July 9, 1973, 87 Stat. 148 [37 U.S.C. § 403(h)]; Pub. L. 105-85, § 603(a), Nov. 18, 1997, 111 Stat. 1775.)

§ 5302. 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 Secretary whenever the Secretary determines that recovery would be against equity and good conscience, if any application for relief is made within 180 days from the date of notification of the indebtedness by the Secretary to the payee, or within such longer period as the Secretary determines is reasonable in case in which the payee demonstrated to the satisfication of the Secretary that such notification was not actually received by such payee within a reasonable period after such date. The Secretary shall include in the notification to the payee a statement of the right of the payee to submit an application for a waiver under this subsection and a description of the procedures for submitting the application.

(b) With respect to any loan guaranteed, insured, or made under chapter 37 of this title, the Secretary shall, except as provided in subsection (c) of this section, waive payment of an indebtedness to the Department by the veteran (as defined in sections 101, 3701, and 3702(a)(2)(C)(ii) of this title), or his spouse, following default and loss of the property, where the Secretary determines that collection of such indebtedness would be against equity and good conscience. An application for relief under this subsection must be made within one year after the date on which the veteran receives notice by certified mail with return receipt requested from the Secretary of the indebtedness. The Secretary shall include in the notification a statement of the right of the veteran to submit an application for a waiver under this subsection and a description of the procedures for submitting the application.

(c) The recovery of any payment or the collection of any indebtedness (or any interest thereon) may be waived under this section if, in the opinion, there exists in connection with the claim for such waiver an indication of fraud, misrepresentation, or bad 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; Pub. L. 101-237, Dec. 18, 1989, 103 Stat. 2075; Pub. L. 102-40, § 402(b)(1), May 7, 1991, 105 Stat. 238; section transferred from 38 U.S.C. §3102 by Pub. L. 102-40, § 402(b)(1), 105 Stat. 238; Pub. L. 102-54, §5, June 13, 1991, 105 Stat. 268; Pub. L. 102-83, §§ 4, 5, Aug. 6, 1991, 105 Stat. 403, 404, 406; Pub. L. 102-547, § 12, Stat. 3645; Pub. L. 105-33, § 8033(b), Aug. 5, 1997, 111 Stat. 669, Oct. 28, 1992, 106 Stat. 363.)

FEDERAL TORT CLAIMS ACT

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 court shall have original jurisdiction, concurrent with the United States Court of Federal Claims, 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)(1) 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 ex

clusive 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 occurred.

(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

(c) The jurisdiction 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. (g) Subject to the provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under chapter 5 of such title.

(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. 94–455, 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; Oct. 29, 1992, Pub. L. 102-572, § 902(b)(1), 106 Stat. 4516; Pub. L. 104-134, § 101(a) [§ 806], Apr. 26, 1996, 110 Stat. 1321, 1321-75; renumbered Pub. L. 104-140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub. L. 104-331, §3(b)(1), Oct. 26, 1996, 110 Stat. 4069.)

§ 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 two 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. 24, 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 judicial and legislative branches, the military departments, independent establishment 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.

"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 section 115, 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, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.

"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 the 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; Nov. 18, 1988, Pub. L. 100-694, §3, 102 Stat. 4564; Pub. L. 106-398, § 1, Oct. 30, 2000, 114 Stat. 1654A-169; Pub. L. 106-518, § 401, Nov. 13, 2000, 114 Stat. 2421.)

§ 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,

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.

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. 1151 (1991 ed.): compensation for vessels seized by the United States pursuant to the Merchant Marine Act of 1936, 46 App. U.S.C. 1242(d) (1991 ed.) or compensation for communications equipment seized by the United States pursuant to the Communications Act of 1934,