DOCUMENT RESUME

02836 - [ A19930C65]

[Settlement of Claims Arising from the Negligent or TortiousActs of Memb3rs, Officers, and Employees of the Senate]. Jujy13, 1977. 3 pp. + 2 enclosures (9 pp.).

Testimony before the Senate Committee on Rules andAdministration; by John J. Higgins, Associate General Counsel.

Issue Area: Law Enforcement and Crime Prevention: White-CollarCrime (509).

contact: Office of the General Counsel: Civilian Personnel.Budget Function: Law Enforcement and Justice: La' Enforceyent

Assistance (754).Congressional Relevance: Senate Committee on Rules and

Administration.Authority: Federal T-t Claims Act; Legislative Reorganization

Act of 1946, title IV (60 Stat. 82; 28 U.S.C. 1346). 28U.S.C. 2672. 26 Comp. Gen. 891. B-127343 (19?6).

There is no objection to a proposed Senate resolutionconcerning the settlement of claims arising out of thenegligence or tortious acts of members, officers, and employeesat the Senate. The resolution would clearly provide thatsettlement of such claims should be made by the Sergeant atArms. Findings/Conclusions: The Federal Tort Claims Act waivedthe immunity of the United States from suits arising out of thenegligent or tort--'us acts of employees of the Governmentcommitted within the scope of their office or employment. In adecision issued in 1976, GAO concluded that although the Senatewould not ordinarily be characterized as a "Federal agency," itsemployees were employees of the United States, and thereappeared to be no reason for excluding them from the operationof this act. This same decision examined the question of whereresponsibility for the administrative adjustment of claims withregard to Senate employees would reside; it concluded thatsettlement could be made by the Sergeant at Arms. The decisionadvised that settlements of $2,500 or less could be made fromthe Senate contingent fund and that settlements in excess of$2,500 should be referred to GAO for payment out of itspermanent indefinite appropriation for the payment of judgments,awards, and compromise settlements. Any awards or settlementover $25,000 must be approved by the Attorney General. (SC)

United States General Ac ounting Of fice

Washington, D.C. 20548

FOR RELEASE N DELIV[RY

co Expected at 10 A.M., DSTJuly 13, 1977

STATEMENT OF JOHN J. HIGGINS, ASSOCIATE GENERAL COUNSEL

OFFICE OF GENERAL COUNSEL

BEFORE THE

COMMITTEE ON RULES AND ADMINISTRATION

UNITED STATES SENATE

Mr. Chairman and Members of the Committee:

We are pleased to meet with yau today to present our views on a

proposed Senate Resolution concerning the settlement of claims arising

out of the negligent o' tortious acts of members, officers and

employees of the Senate.

Mr. Chairman, as you know, the Federal Tort Claims Act waived

the immunity of the United States from suits arising out of the

negligent or tortious acts of employeec of the Government committed

within the scope of their office Gr employment. A question arose,

however, regarding the definitions of "employee of the Government,"

and "Federal agency," as employed in the Act, as to whether or not

employees of thy legislative branch were intended to be covered.

W2 have tw ce considered this question. In 1947 we concluded

that the Library of Congress was h Federal agency within the meaning

of the Act, and that consequently its employees were employees of

the Government covered by the Federal Tort Claims Act. (26 Comp.

Gen. 891). In the second case decided in 1976, involving Senate

employees, we stated that the Act applied to all employees of the

legislative branch. Insurance on Senate Vehicles, B-127343,

December 15, 1976. Our decisions in both cares were based on

an examination of the Act and its legislative history, wherein

nothing could he found to indicate that t was the intent of

the Congress to exclude any Federal agencies or employees Jm

the operation of the Act. In our decision of last year we con-

cluded that although the Senate would not ordinarily be

characterized as a "Federal agency," its employees were employees

of the United States, and no reason appeared for excluding hem

from the operation of the Act.

Section 2672 of title 28 of the United States Code places

responsibility for the administrative adjustment of claims with

the head of each Federal agency. Tht question also arose, therefore,

where such responsibility would reside with regard to Senate

employees. In our 1976 decision we recognized that settlement

could be made by the Sergeant at Arms. We also indicated that

settlements of $2500 or less could be made from the Senate

contingent fund, and settlements in excess of $2500 should be

referred to cur Office for payment out of our permanent indefinite

appropriation for the payment of judgments, awards, and compromise

settlements, as is done presently with all such cases throughout

the Government. Of course under the Federal Tort Claims Act

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any awards or settlement over $25,000 us't be approved by

the Attorney General.

We understand that the proposed Senate Resolution would

clearly provide that the settlement of clains against the

United State; arising out of the negligent'or tortious acts

of members, officers, and employees of the Senate be made by

the Sergeant at Arms. Payments of settlements of $2500 or less

;tre to wade out of the Senate contingent fund, and payments in

excess of this amount are to be referred to the General Accounting

Office.

The settlement and payment of tort claims as provided in

the proposed Resolution would comport with our decision con-

cerr.ing the applicability of the Federal Tort Claims Act to

Senate employees and the administration of the Act within the

Senate. Accordingly, we would have no objection to the proposed

Resolution.

Mr. Chairman, that concludes my prepared statement. We will

be pleased to respond to any questions that you and other members

of the Committee may have.

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Trl¶e COMPTROLLER GENFRALpeCISION . OF T H E UN I'I.ED STATES

WAS H I N G T N. .C . 2 54

FILE: B-127343 OATE: ' c

MATTER OF:Insurance on Sente Vehicles

DIGEST: (1) By enactment of Federal Tort Claims Act, UnitedStates ppaars to have waived sovereign iunityfrom suit for torts cou itted within scope of their.employment, by employees of legislative as well asexecutive branches, sinre legislative history of Actestablishes tat definitions for terms 'Federal agency"and "Employee of the government" contained .Wherein,were not intended to exclude any agency or employeeof the United States, unless excluded by specificexception. Therefore, Senate employees who arenegligent while operating Senate-owned vehicles incour-c of employment are protected against claims fordamage or injury under Federal Tort Claims Act, sincethey are "mployee[U] of the government" within thebroad meaning of the Act.

(2) Pcssible overnrment liability for torts committed bySenate employees while operating Senate-owned vehicleswithin course of their employment sould not be coveredby ir urance from commercial sources since settledpolicy of United States is o assume its own risks,,cnd unless expressly provided otherwise by statute,funds for support of Government activities are notgenerally considered available for purchase of insuranceto cover such risk.

(3) Senate ay make payments of $2,500 or less from con-tingent fund to cover sttlements under Federal TortClaims Act for .accidents caused by Senate employeeswhile operating Senate-owned 'vehicles in course ofemployment. Settlements in excess of $2,500 should bereferred to Comptroller General for payment in accordancewith procedures provided in Act, 28 U.S.C. § 2672.

This is in response to an inquiry from the Sergeant at Arms,United States Senate, concerning whether. and to what extent, Senateemployees :cho are involved in au 7.obile accidents while operatins

_ , . . . . . . . .~~

3-127343

Seuato-oued tor vehicles in the curse of their ?LployMent reproticted aainat liability for d.--ae or' injury b/ the United States.Ouz dvice is reueasted as to v'it steps, if any, should be taken toprovide full nd dequate. liability coverage for such personnel,including the osslbla purchase of insurance tree comarcal sources.

Woe he been inforinally advised that, in t.se past, claiMs arisingout of the operation of Snate-oned vehicl.es rave boen settled andbdjustld by the Sergeant at Arms. The voucter for payment has thenbeen presented to the Stnate Comittee on ules aud Administr&tionfor approvul. hsn approved, payment was ude from the cont:incer.tfund of the Senate. A imilar procedure has apparently been olkl'-edLA the Hou-c.

It La suggested, however, thac the United Stattc as not vaive6its soverei:n immunity from suit for torts cuilled by emp:,ye ofthe laislative branch of Covern=ent. If this were truy, paymentsout o the cntingent fund, or any oer fund ould havQ been .Aadewhere no actual risk of los reated n the United States. ,'oreover,if redress were not proided by tht Senate. t claisrat's onlyrema/ni, cause of action would be against the Senate emlo-e inhis individual capacity. Cf. Lars-, . o-otilc and o-.eisn onerceCorn., 337 U.S. 682, 656-687, rei. en.u, 33 U.S. 43 (i94i). TleSerDcant at Arms is therefore cseoarned about t resultin "rzve* * expoaur- to risk of Sonata prsonnel who drive thoae automobilies."

The Federal Tort Claims Act was enacted as title IV of the Letis-lative r.aoraanisation ACt o 1946, approved August 2, 1946, ch. 753,60 Scat. 812. le Act provi4cs, in pertrant part, as fol.ows,28 U.S.C S 1346(b; (1970):

"(b) Subject to the provisions of chapter 171 ofthis title, the district courts, togecher with the t'naitedStates Distric tCourt for the District of the Cranal Zoneand te District Court of the Virgin Ilads, shall aveexclusive jurisdiction of civil actions on clai=z againstthe United States, for money daaeese, accruin3 on and afterJanuary 1, 1945, for injury or loss of property, or personalinjury or death caused by the nezlige:;t or ron3ful act ororission of any employee of the Gove'nreunt while actingwithin the scope of his office or suployment, under circum-stances where te United States, if private person,would be liable to the claimant in accordance with tho1Aw of the place where the act or oiosion occurred."

22

-B-127343 E

The terms "Employee of the government" and "Federal agency" are,defined in the Act at 28 U.S.C. 2671 (1970), which provides inpertinent part, as follows:

"As used in this chapter and sections 1346(b) and201(b) of this title, the term 'Federal agency' lrcludesthe executive departments, tho military departmenta, inde-pendent establishments of the United States, and corpo-rations primaLlr acting as instrumentalities or aencies'of the United States but does not include any contractorwith the United States. .

"'Ezployee of the government' includes officers oremployee, of any federal aency, members of the militaryor naval- rrc8es of the United States, and persons actingon behalf of a federal agency in an official capacity,temporarily or permanently in ta service of the UnitedStates, whether with or without compensation." (Emplasissupplied.)

z'he Senate Committee report on the 1946 legislation, S. Rep. No.1400, 79th Cong., 2nd Sess., 31 (1946)· explained these definitionE,as follows:

"This section [402] defines the terms used in thetitle and makes it clear that its provisions cover allFederal agencies, including Govereent orporations, andall Federal officers and employees, including membersof the military and naval forces * * *.': (Emphasissupplied.)

S. Fep. lo. 1400, supra at 29, also states as follows:

"Thi.s title [IV-Federal Tort Claims Act] ;aives,with certain limitations, goveraental immunity tosuit in.tort and ermits suits on tort claims to bebrought aainst the 'nited StaLes. It is connlementaryto the rovision in title I anning private bills andresolutions in Congress, leavin claimants to theirremedy under this title."

In 'c'aura v. United States, 199 F. Supp. 89, 880-8831 (D.D.C.1961), the court rejected te view that the Federal Tort Claims Actapplied only to the executive branch, stating, in pertinent art:

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B-127343* ..

"* * * It is obvious that the purpose of thatdefinition (Federal agency] was to make certain thatgovernment-rned corporations and government-controlledcorporations should be included as branches of thegovernment for the purpose of the Federal Tort ClaimsAct. The Court is unable to see any other purposeof that clause.

"Finally, there is no legislative history indicatingany desire or intertion to limit the statute in theranner contended in this case. It is the view of thisCourt that to adopt such a narrow limitation would defeata part of the beneficent purposes of the statute. Forthis reason, the Court dheres to its ruling that thestatrate applies to all three branches of the government."

But cf., Cromelin v. United States, 4*77 .2d 275, 277 (5th Cir. 1949),cert. denied, 339 U.S. 944 (1950). _

We are unaware of anything in the legislative history indicatingthat it was the intent of the Congress to exclude the activities ofany employee of he Government except by specific mention. Thus, weir.icated in 26 Coo. Gen. 891 (u&7)n that no agencies or employeescf the United States are excluded from te operation of the Act,'sxcept as enumerated in 28 U.S.C. § 2680. It was held, therefore,that the Library of Congress, a legislatf.ve establishment, was subjectto the Act.

While the Senate would not ordinarily be characterized as a"Federal agency," its employees are employees of the United States,and no reason appears for excluding them from the operation of the Act.

* While the opinion in Cromel4.n states flatly that a Federal judge isnot an employee of the Unitei States within the meaning of theTort Clairms Act, the clalm involved related to alleged ':malfeasance,misfeasance, and nonfeasance" on the part of a judge in he conductof a proceeding before him. Clearly this claim would, in any event,have been excepted from the Act since it was "* * * based upon theexercise or performance or the failure to exercise or perform adiscretionary funztion or duty * * * whether or 3t the discretioninvolved was abused." See 28 U.S.C. § 2680(a). Thus, in view ofthe limited factual context, we do not read Cromelin as a preceder.tfor the blanket exclusion of udicial branch officials and etovesfrrm the coverage of the Tort Claims Act and in any case are rotcompelled to Vtend this holding to the legislative branch.

· )~ ~ ~ 4

B-127343

Accordingly, it is our view that the United States is subject tosuit for torts cmnnitted by Senate employees who are involved inautomobile accidents while operating Senate-owned vehicles with:.nthe scope of their employment.

Pursuant to 28 U.S.C. 2679(b) (1970), tort suite againstGovernment emloyees in teir individual capacities for injury orloss of poperty or personal injury or death, resulting from operationof a motor vehicle while *'ctin; within the scope of their oftice ofemployment, are precluded, nd the injured pargy's exclusive remedyis ae.anst the United States. Thus, the employee is iune from suitand the Federal Government is thae only party subject to liability forthe employee's negligence. Skrocki v. Butler, 324 . Supp. 1042(E.D. ich. 1971); Kiter v. Sherwood, 311 F. Supp. 809, 811 (D. Pa.1971). Accordingly, it appears that the subject employees are fullyand adequately protected ,while driving Senate-owned automobiles withinthe scope of their employment, and the risk of loss falls exclusivelyon the Government.

In this regard, it is a long-standing policy of the Governmentto self-insure its on risks of loss. As far back as February 9,1892, the first Comptroller of the TreasJury so advised the Departmentof ate. This policy has been restated aad followed in numerousdecisions ever since that time. See, e.g., 13 Comp. Dec. 779 (1)07).21 Comp. Gen. 928, 929 (1942); B-5994, October 8, 1946. In chisconnection, we have stated that:

"It is a settled policy of the United States to asstLeits onm rinks and te established rule is that, unlessexpressly provided by statute, funds or the support ofGovernment activities are not considered applicablegenerally for the purchase of insurance to cover loss ofor damage to Government --operty. * * * It is not suffi-cient that there is no laiw specifically providing- that theUnited States shall not insure its property aSainst loss,but rther that there is some law which specificallyauthorizes it. * * * The basic principle of fire, tornado,or other similar insurance is the lessening of the burden ofindividual losses by wider distribution thereof, and it isdifficult to conceive of a person, corporation, or legalentity better prepared to carry insurance or sustain aloss than the United States Government. As to this policyof the Covernment to assume its own risks, no materialdistinction is apparent between assumption of risk ofproperty damage and assumption of tLsk of tort liability."19 Comp. Gen. 798, 800 (1940).

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.B-127343

The purchase of insurance fro,_ comercial sources by the Government,irld not, therefore, be necessav or desirable.

Finally, the question arises as to the applicability of28 U.S.C. 2672, concerning administrative adjustment of claims,to the instant situation. This section reads, in pertinent part,as follows:

"Any award, compromise, or settlement in 7 amountof $2,500 or less made pursuant to this section shall be'.paid by the head of the Federal aency concerned out ofappropriations available to that ency. Payment of anyaward, compromise, or settlement in an amount in excessof $2,500 made prsuant to this section or made by theAttorney Geueral in any amount pursuant to section 2677of this title shall be paid in a manner similar to Judg-ments and comprorises in like causes and appropriationsor funds available for the payment of such judgments andcompromises are hereby made available for the payment ofawards, compromises, or settlements under this chapter."

Pursuant to this section, payment of settlements in amounts over$2,500 is to be made in a manner similar to 3udgments and compromisesin like causes, 'which ae required by 28 U.S.C. §; 2414 and 2517, and31 U.S.C. 724e, to be made upon settlement by our Office, where theamount does not exceed $100,000. B-115984, i-ay 21, 1976.

Therefore, payment of awards or settlements of $2,500 or lesscould continue to be made from the Senate concingent fund. Settlementsin excess of the $2,500 limitation contained in 28 U.S.C. 5 2672 shouldbe referred to our Office for payment in accordance with the above-described procedures. However, payments out of the contingent fundin excess of $2,500, authorized by the Senate Comittee on ules andAdministration, could not be questioned by our Office (see 2 U.S.C.If 68 and 95 (1970)).

Comptroller Generalof the United States

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C:-;:r:-r General Warren to An-n Poe, Departmrent o C.rm-merce, MJay 5,

.i.er. aZs been receive b reference from the O ee of zhe Genera!_i -'ott.- S-rvice. our etter of April 23. 1047. In whiclh you rele:

.- a"-e ~= deciltin a :o w-I;erler you properly may er.ifv for a_-= La - XuMicher su'bm--ed t!:ere;wti in favor of the E C. C.:-h C.._ e -- =oss aou. ci.f rS4:13. c,everMg claim for a:'r.ent of th:ree- '-_orci irt-.he orde urn - he Wash n , : .:i-rnrt ur.Ker:.,..-t:: No. Ccna-!i. lted Jan:.-1. i..i: .a:ears from lr;,- letter that ; rthr t.im.- reco'l.'s ar to

-i ;"t.s:: , at the T,:i to. actional &irporm in order to ecnrl!-- e, - of service of he m:-i:l-=ane ':id custordial per-onnei oni-=- -: various loca:icn.rs at th, aioort. It appears furtLer .a L:e

s-=a_:ion of the cor,-:er s !hs been -;n to be ir. the !best-re-is cf the Goverrment on the bais thar t'ir u.=e will matcr :l'v-ce.. tIe efflien.r:-- of supervisors and result in ome ucre.-- i-e .=ount of worlk ;erformed b the emploees concerned. Yo.