DAO 203-24

SECTION 1.  PURPOSE.

.01       The purpose of this Order is to delegate authority to settle or deny claims under the Federal Tort Claims Act (in part, 28 United States Code (U.S.C.) 2671-2680), as amended by Public Law 89-506, 80 Stat. 306, and Public Law 106-518, 114 Stat. 2421 and to establish procedures for the administrative adjudication of such claims.

.02       This revision reflects a general update to the Order.

SECTION 2.  APPLICABLE PROVISIONS OF LAW AND REGULATIONS.

.01       Section 2672 of Title 28, U.S.C., as amended, provides that:

a.         The head of each Federal agency or their 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 the 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 their designee.  Such delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States.  Each Federal agency may use arbitration, or other alternative means of dispute resolution under the provisions of Subchapter IV of Chapter 5 of Title 5, to settle any tort claim against the United States, to the extent of the agency’s authority to award, compromise, or settle such claim without the prior written approval of the Attorney General or their designee.

b.          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.

c.           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, and settlements under this chapter.

d.           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.

.02        Subsection (a) of Section 2675 of Title 28 provides that 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 their office of employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and their claims shall have been finally denied by the agency in writing and sent by certified or registered mail.  The failure of any agency to make final disposition of claim within six months after it is filed shall, at the option of the claimant anytime, 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, crossclaim, or counterclaim.

.03        Section 2678 of Title 28 provides that no attorney shall charge fees in excess of 25% of a judgment or settlement after litigation, or over 20% of administrative settlement.

.04        Section 2679 of Title 28 provides that tort remedies against the United States arising from the negligent or wrongful acts or omissions of an employee acting within the scope of their office or employment is exclusive of any other civil action against the employee. Thus, if an employee is sued personally for an alleged tort committed within the scope of their employment, the Assistant General Counsel for Employment, Litigation, and Information will request that the Department of Justice certify the employee and substitute the United States as sole defendant.

.05        Section 2401(b) of Title 28 provides that 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.

.06        As provided for under Section 2672 as amended, the Attorney General has issued regulations (referred to in this Order as “the regulations”) prescribing standards and procedures for settlement of tort claims (28 Code of Federal Regulations (CFR) Part 14). Persons delegated authority under this Order must follow and be guided by these regulations, a copy of which is attached as Appendix A to this Order.

SECTION 3.  DELEGATION OF AUTHORITY.

.01        The General Counsel will serve as designee of the Secretary of Commerce for the Office of the Secretary and all primary operating units with respect to tort claims filed under Section 2672 of Title 28, U.S.C., with authority to settle or deny such claims.

.02        Authority delegated under this section may be redelegated.

.03        Settlement or denial of any claim under this Order is final for the Department of Commerce (the “Department”).

SECTION 4.  PROCEDURES FOR FILING CLAIMS.

.01        The required procedure for filing and the contents of claims is described in the Regulations under Sections 14.2, 14.3, and 14.4 of 28 CFR.

.02        Claims must be submitted to the Assistant General Counsel for Employment, Litigation, and Information, U.S. Department of Commerce, Washington, D.C. 20230.  Claims also may be submitted by email to [email protected].

.03        If a claim is filed elsewhere in the Department, it must immediately be recorded and transmitted to the Assistant General Counsel for Employment, Litigation, and Information.

SECTION 5.  ADJUDICATION AND SETTLEMENT OF CLAIMS.

.01        Upon receipt of a claim by the Assistant General Counsel for Employment, Litigation, and Information, the time and date of receipt must be recorded.  If a claim involves a primary operating unit to which authority has been redelegated under Section 3.02 of this Order, the Assistant General Counsel will, after recording the claim, transmit it to the appropriate official of that unit.  The appropriate official must prepare a file, obtain additional information as necessary, and prepare for the Assistant General Counsel’s signature a proposed award or denial of the claim.  If the investigation capabilities of the unit are insufficient for a proper and complete investigation, the unit must consult with the Departmental Office of Security and Administrative Services, Office of Security to:

a.           have that office conduct the investigation; or

b.           request another federal agency to conduct the investigation as necessary, as authorized under Section 14.8 of the Regulations, on a reimbursable basis.

.02        If the amount of the proposed award exceeds $25,000 (in which case, approval by the Attorney General is required), or if consultation with the Department of Justice is desired or required under the Regulations Section 14.6 of 28 CFR, the Assistant General Counsel for Employment, Litigation, and Information will prepare and compile the material required by the Department of Justice under Section 14.6 of the Regulations.

.03        Denial of a claim must be communicated as provided by Section 14.9 of 28 CFR.

.04        Designees under this Order are responsible for the control over and expeditious handling of claims, bearing in mind the applicable statutory time limitations for adjudication of claims.

SECTION 6.  PAYMENT OF CLAIMS.

.01         When an award is made, the file on the case must be transmitted to the appropriate fiscal office for payment by the Department or for transmittal for payment as prescribed by Section 14.10 of the Regulations.  Prior to payment appropriate releases must be obtained, as provided in the regulations.

SECTION 7.  SUPPLEMENTARY REGULATIONS.

.01        The General Counsel may, from time to time, issue such supplementary regulations or instructions as deemed appropriate to carry out the purpose of this Order.

.02        Any designee mentioned in Section 3.02 of this Order may issue regulations or instructions covering their area of responsibility that are consistent with this Order and with those issues under Section 7.01, such regulations and instructions to be approved by the Assistant General Counsel for Employment, Litigation, and Information.

SECTION 8.  EFFECT ON OTHER ORDERS.

.01        This Order supersedes Department Administrative Order 203-24, dated March 27, 1997.

Signed by: Acting Chief Financial Officer and Assistant Secretary for Administration

Approved by: Secretary of Commerce

Office of Primary Interest: Office of the General Counsel