451.1 – Tort Claims Against the United States

Date: 8/29/2014

OPR: Office of Administration

Instruction:  This replaces Survey Manual (SM) chapter 451.1.1 – Tort Claims Against the United States, dated  May 5, 1987.

1.  Purpose. This chapter prescribes U.S. Geological Survey (USGS) policies, responsibilities, and procedures for handling claims against the U.S. Government under the Federal Tort Claims Act.

2.  Scope. The Department of the Interior’s policies and procedures regarding property loss, property damage, personal injury, and death due to alleged negligence, omissions, or wrongful acts by USGS employees (includes volunteers, students hired pursuant to Human Resources authorities and students working under agreements issued pursuant to 43 USC 50d, and scientist emeriti) while acting within the scope of their office or employment are contained in part 451 of the Departmental Manual, Chapter 1 (451 DM 1), Tort Claims Against the United States.  In any area of disagreement between this chapter and 451 DM 1, procedures contained in 451 DM 1 prevail.

3.  Authorities.

A.  Part 451 of the Departmental Manual, Chapter 1, Claims.

B. 28 U.S.C. 171, §§ 2671-80, Federal Tort Claims Procedure.

4.  Policy.  It is the policy of the USGS that its officials and managers are responsible for the prevention of situations that cause property losses, property damages, personal injuries, or deaths.  When a claim is made, USGS officials and managers are responsible for proper investigation, documentation, and processing of claims within their areas of control.  Determination of whether a claim against the U.S. Government may be allowed on the basis of fact and applicable law is a legal or judicial responsibility of the Office of the Solicitor.  USGS officials and managers will work closely with the Office of the Solicitor and the U.S. Attorney toward the resolution of all claims filed against the USGS.

5.  Federal Tort Claims Act (FTCA).  This Act provides a means whereby damages may be awarded as a result of claims 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 Government while acting within the scope of [their] office or employment.”

6.  Responsibilities.

A.  Associate Director for Administration. The Associate Director for Administration has overall responsibility for the prompt processing of all claims against the USGS.  If requested by the Office of the Solicitor or the U.S. Attorney’s Office, the Associate Director can issue a concurrence on settlements.  The Associate Director is assisted by the delegated Bureau Tort Claim Officer.

B.  Bureau Tort Claim Officer. Serves as the Tort Claims Officer for the USGS and is responsible for disseminating guidance on the processing of tort claims; acts as the liaison to the Solicitor for all tort claims and submits all claims received from the cost centers to the Solicitor.  The Officer should contact the Solicitor that covers the state in which the tort claim occurred.

C.  Cost Center Managers and Supervisors are responsible for the following:

(1)  Taking reasonable steps to prevent accident, injury, loss of or damage to property, and loss of life.  Reasonable steps include adherence to safety and health policy and regulations, proper training and supervision of employees, and dissemination of guidance necessary to ensure the safety of visitors.

(2)  Properly handling claims; proper report

(3)  Taking appropriate corrective and other follow-up actions, including recommending disciplinary action, to prevent the recurrence of claims against the U.S. Government.

D.  Employees. When a lawsuit is threatened or filed against an employee for torts arising out of U.S. Government service, the employee should notify their supervisor.  Should a claim result, the employee should deliver all process papers and pleadings to the supervisor.  All subsequent action is in accordance with guidance provided by the Cost Center point of contact.

E.  Regional Safety Managers or OMS Operations Safety Staff review accident/incident reports to ensure they are completed and entered into the Department’s Safety Management Information System (SMIS).

F.  Property Officers review reports of damaged property or loss of property and take appropriate action.

G.  Cost Centers provide a point of contact designated to assist managers and supervisors in processing tort and employee claims against the USGS. 

(1)  For all incidents that may result in a claim, the Cost Center is responsible for collecting information and evidence to protect the U.S. Government's interest and conducting any such further investigation requested by the Solicitor.

(2) The nature and extent of the Cost Center's investigation depends on the seriousness of the incident and the need for additional information.  The Cost Center takes the following actions and others, as necessary:

(a)  Finds, interviews, and secures signed statements from all witnesses on facts pertinent to the incident.  Witnesses should be interviewed at the earliest opportunity.  In remote areas or when it is not feasible to have the Cost Center Tort Claims point of contact on the scene of the accident while witnesses are available, the operator of the vehicle will obtain the name and address of each witness.

(b)  Inspects incident sites, damaged property, and interviews injured individuals or their representatives.  If the personal inspection and interview are not conducted, state the reason(s) why.

(c)  Ascertains the nature, extent, and amount of damage or injury, and obtains all pertinent repair bills or estimates and medical, hospital, and associated bills.

(e)  Ascertains whether the employee involved carried liability insurance which might cover, in whole or in part, the damage or injury sustained and might provide protection from legal action.

(d)  At the direction of the Bureau Tort Claims Officer, consults with the appropriate Solicitor to determine action to be taken to aid the employee. The Cost Center point of contact advises the Solicitor of the status of any case filed.

(e)  Prepares a case/report file which includes, where appropriate, photographs, measurements, doctor's certificate of bodily injury, police investigation reports, operator's statement, agency's recommendations, witnesses' statements, and any other pertinent data.

(f)  Submits the Tort Claim Package to the Bureau Tort Claims Officer.  The Tort Claim Package should include the following items, depending on the nature of the claim:

(i)  Form SF-95. Claim for Damage or Injury.

(ii)  Form SF-94. Statement of Witness

(iii)  Form SF-91. Investigative Report of Motor Vehicle Accident.

(iv)  Copy of employee’s personal liability insurance statement, if applicable

(v)  Medical examinations for the parties involved, if applicable.

(vii)  Police report.

(vii) Photos of damage

Note:  The SMIS Accident/Incident Report is not included in the initial package but will be provided upon request from the Solicitor’s Office.

H.  The Solicitor is the official who is authorized to make the final determination of awards or denial of claims.  The Solicitor has settlement authority except for matters in litigation when the U.S. Attorney’s Office will have settlement authority.

I.  Office of Accounting and Financial Management (OAFM), Accounts Payable and Travel Branch, issues tort claim payments.

7.  Claimant Action. A claimant must file a claim with the USGS for determination by the Department.  To do so, the claimant completes SF-95, Claim for Damage or Injury.  However, the claimant may file a claim in any form, providing it contains the information specified in the SF-95.  Any filed claim must be signed and dated by the claimant.  Specific areas to be addressed are as follows:

A.  Name, address, and telephone number of claimant.

B.  A detailed description of the place of incident.

C.  Date and time of incident.

D.  Dollar amount of claim, including property damage and personal injury and cost of related rentals and services, if applicable. The claim must be for a specific dollar amount.

E.  Description of incident. 

F.  Name and address of property owner if other than claimant.

G.  Location of damaged property and extent of damage.

H.  If an injury occurred, nature and extent of injury.

I.  Name, addresses, and telephone numbers of any witnesses.

J.  If applicable, name, address, telephone number, and policy number of insurance carrier.

K.  Statement as to whether claim has been filed with an insurance carrier and action of carrier, if known.

L.  Medical Evidence.  When the claim involves an injury or illness, medical evidence shall be presented with the claim.  (If the claimant does not submit competent medical evidence, the Cost Center  point of contact may seek a medical examination of the claimant by a reputable private doctor.  The doctor's fee is payable from the appropriations available for payment of claims arising under the Federal Tort Claims Act (29 Comp. Gen. 111; September 6, 1949)).

8.  Employee Action.

A.  Immediately upon involvement in an accident or other incident resulting in personal injury or damaged property of a private individual, the employee shall notify their supervisor and complete an SMIS Accident/Incident Report in accordance with Chapter 7 of the Occupational Safety and Health Program Requirements Handbook (SM 445-2-H), “Incident/Accident Reporting and Serious Accident Investigation.”  If the employee is unable to perform this role, the supervisor will complete the SMIS Accident/Incident Report.  The supervisor, in turn, will immediately notify the Bureau Tort Claims Officer.

B.  In discussing the accident with a potential claimant or claimant's representative, the employee shall not state their conclusion as to fault.  The employee shall state the facts in full as distinguished from personal opinions and conclusions.  

C.  The employee must obtain the name and address of all witnesses.

D.  If the employee carries personal liability insurance, a statement showing the amount of coverage and the name and address of the insurance carrier shall be provided.  The employee shall advise the insurance carrier of the accident/incident immediately.

E.  If a claim is filed at a local level, the cost center manager enters the time and date received in the margin and transmits the claim to the Bureau Tort Claims Officer.

9.  Procedures for Investigating a Potential Tort.  The following apply:

A.  A Standard Form 91, Investigative Report of Motor Vehicle Accident, must be completed when a motor vehicle accident occurs.  A Standard Form 94, Statement of Witness, should be requested from each witness.

B.  Supervisors will review all forms for completeness and consult with the Regional or National Program Safety Manager to ensure accidents or incidents are appropriately investigated and documented within the SMIS. The Regional or National Program Safety Manager may request that the supervisor submit additional information, forms, or documentation.

10.  Solicitor’s Determination.

A.  Upon receipt of the claim, the appropriate Solicitor’s Office shall make a determination of the claim.  The determination may be to deny the claim, offer a compromise, or approve the claim for payment in full.  A notice of the disposition of the claim shall be in writing and sent to the claimant or claimant’s attorney or legal representative.

B.  If the claim is denied, the Solicitor prepares a final denial of administrative claim in writing and sends it to the claimant and the claimant’s attorney or legal representative by certified or registered mail.  The notification of final denial may include a statement of the reasons for the denial and shall include a statement that the claimant is entitled to resubmit the claim to the deciding official or file suit in the appropriate U.S. District Court within 6 months if dissatisfied with the determination.  The initial decision is final unless reconsideration is requested.

C.  The Solicitor has 6 months from the date of the filing of the reconsideration request to make a final disposition of the claim.  Final action on a request for reconsideration must be in writing and sent to the claimant and the claimant's attorney or legal representative by certified or registered mail.  The notification of final denial may include a statement of the reasons for the denial and shall include a statement that the claimant is entitled to submit the claim to the appropriate U.S. District Court within 6 months.  After the 6 months elapses, the claimant may file suit in Federal court. 

D.  If any award, compromise, or settlement is made for $2,500 or less, the Solicitor will send a signed copy of the determination together with an original payment voucher (SF-1145, Voucher for Payment under Federal Tort Claims Act) to the Cost Center point of contact and the Bureau Tort Claims Officer.  The Bureau Tort Claims Officer will submit all paperwork to the OAFM, Accounts Payable and Travel Branch, for payment to be issued.

E.  If any award, compromise, or settlement is made in excess of $2,500 and not more than $100,000, the Solicitor will forward the signed FMS-197 to the Treasury Department of Judgment Fund.

F.  Claims in excess of $100,000 will be forwarded to Department of Justice.

11.  Employee Liability.

A.  An injured party may choose to sue the involved employee individually, the employee and the USGS jointly, or the USGS alone.  The Federal Tort Claims Act provides that any suit brought against an employee or an employee's estate for an injury resulting from the operation of a motor vehicle (U.S. Government-owned or -leased, or privately owned) while acting within the scope of employment, will be deemed to be against the United States and will be defended by the U.S. Attorney.  Authority to determine whether or not the employee was acting within the scope of employment has been delegated to the U.S. Attorney.

B.  Although the Tort Claims Act substantially reduces an employee's liability, it does not provide the employee with absolute protection.  Further, the U.S. Attorney, or the district court, may determine that the employee was not acting within the scope of employment; in that case, the employee is personally liable for any injury involved.  In view of this possibility, employees should consider carrying the broadest possible personal liability insurance.

C.  If an employee is served with papers requiring proof of financial responsibility (under a State law imposing such a requirement with respect to automobile accidents) and the employee's personal insurance carrier disclaims liability, such papers are forwarded with the process papers and pleading to the Tort Claims Officer.  The finding of the U.S. Attorney as to the applicability of the Federal Tort Claims Act may be forwarded to the State agency as proof of financial responsibility.

12. Cost Center Liability

The intent of the USGS Human Resources Reserve is to limit the impact on cost centers’ expenses for workers' compensation, equal employment opportunity settlements, and tort claims when these expenses in the aggregate exceed $5,000 or 1% of salaries and benefits, whichever is greater.  When the cost center expenses exceed this threshold, the Bureau will fund the costs above the threshold.  However, the cost center will need to request funding for their equal employment opportunity (EEO) settlements and tort claims when the aggregate costs, including workers compensation, exceeds the $5,000 or 1% of salaries and benefits, whichever is greater.  Each request will be handled on a case-by-case basis and will be funded based on approval of the request and the availability of Bureau funds.

/s/ Paul M. McEnrue                                                                          August 29, 2014

__________________________________________                        _____________________

Paul M. McEnrue                                                                               Date

Acting Associate Director for Administration