Federal Tort Claims Act

Page 599

TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE

‘‘(1) For more than 40 years the Federal Tort
Claims Act [see Short Title note above] has been the
legal mechanism for compensating persons injured by
negligent or wrongful acts of Federal employees committed within the scope of their employment.
‘‘(2) The United States, through the Federal Tort
Claims Act, is responsible to injured persons for the
common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment.
‘‘(3) Because Federal employees for many years
have been protected from personal common law tort
liability by a broad based immunity, the Federal Tort
Claims Act has served as the sole means for compensating persons injured by the tortious conduct of
Federal employees.
‘‘(4) Recent judicial decisions, and particularly the
decision of the United States Supreme Court in
Westfall v. Erwin, have seriously eroded the common
law tort immunity previously available to Federal
employees.
‘‘(5) This erosion of immunity of Federal employees
from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.
‘‘(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out
their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts.
‘‘(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated that the Congress is in the
best position to determine the extent to which Federal employees should be personally liable for common law torts, and that legislative consideration of
this matter would be useful.
‘‘(b) PURPOSE.—It is the purpose of this Act [see Short
Title of 1988 Amendment note under section 1 of this
title] to protect Federal employees from personal liability for common law torts committed within the
scope of their employment, while providing persons injured by the common law torts of Federal employees
with an appropriate remedy against the United
States.’’

§ 2672. Administrative adjustment of claims
The head of each Federal agency or his 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 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: 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 his designee. Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement may be effected without the prior written approval of the Attorney General or his or
her designee, to the extent that the Attorney
General delegates to the head of the agency the
authority to make such award, compromise, or
settlement. Such delegations may not exceed
the authority delegated by the Attorney General

§ 2672

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 his or her designee.
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.
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, or
settlements under this chapter.
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.
(June 25, 1948, ch. 646, 62 Stat. 983; Apr. 25, 1949,
ch. 92, § 2(b), 63 Stat. 62; May 24, 1949, ch. 139,
§ 125, 63 Stat. 106; Sept. 23, 1950, ch. 1010, § 9, 64
Stat. 987; Pub. L. 86–238, § 1(1), Sept. 8, 1959, 73
Stat. 471; Pub. L. 89–506, §§ 1, 9(a), July 18, 1966,
80 Stat. 306, 308; Pub. L. 101–552, § 8(a), Nov. 15,
1990, 104 Stat. 2746.)
HISTORICAL AND REVISION NOTES
1948 ACT
Based on title 28, U.S.C., 1940 ed., § 921 (Aug. 2, 1946,
ch. 753, § 403, 60 Stat. 843).
The phrase ‘‘accruing on and after January 1, 1945’’
was omitted because executed as of the date of the enactment of this revised title.
Changes were made in phraseology.
1949 ACT
This section corrects a typographical error in section
2672 of title 28, U.S.C.
AMENDMENTS
1990—Pub. L. 101–552 inserted at end of first par.
‘‘Notwithstanding the proviso contained in the preceding sentence, any award, compromise, or settlement
may be effected without the prior written approval of
the Attorney General or his or her designee, to the extent that the Attorney General delegates to the head of
the agency the authority to make such award, compromise, or settlement. 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 Fed-

§ 2673

TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE

eral 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 his or her designee.’’
1966—Pub. L. 89–506 substituted ‘‘claims’’ for ‘‘claims
of $2,500 or less’’ in section catchline, authorized administrative settlement of tort claims, in accordance
with regulations prescribed by the Attorney General, of
up to $25,000 and, with the prior written approval of the
Attorney General or his designee, in excess of $25,000,
inserted ‘‘compromise’’ and ‘‘settlement’’ to list of administrative acts that would be final and conclusive on
all officers of the government, authorized the payment
of administrative settlements in excess of $2,500 in the
manner similar to judgments and compromises in like
causes, and made appropriations and funds which were
available for the payment of such judgments and compromises available for the payment of awards, compromises, or settlements under this chapter.
1959—Pub. L. 86–238 substituted ‘‘$2,500’’ for ‘‘$1,000’’
in section catchline and text.
1950—Act Sept. 23, 1950, struck out requirement for
specific authorization for payment of tort claims in appropriation acts.
1949—Act Apr. 25, 1949, inserted ‘‘accruing on or after
January 1, 1945’’ after ‘‘United States’’ in first par.
Act May 24, 1949, substituted ‘‘2677’’ for ‘‘2678’’ in
third par.
EFFECTIVE DATE OF 1966 AMENDMENT
Section 10 of Pub. L. 89–506 provided that: ‘‘This Act
[amending this section, sections 2401, 2671, 2675, 2677,
2678, and 2679 of this title, section 724a of former Title
31, Money and Finance, and former section 4116 of Title
38, Veterans’ Benefits], shall apply to claims accruing
six months or more after the date of its enactment
[July 18, 1966].’’
LAWS UNAFFECTED
Section 424(b) of act Aug. 2, 1946, ch. 753, title IV, 60
Stat. 856, provided that: ‘‘Nothing contained herein
shall be deemed to repeal any provision of law authorizing any Federal agency to consider, ascertain, adjust,
settle, determine, or pay any claim on account of damage to or loss of property or on account of personal injury or death, in cases in which such damage, loss, injury, or death was not caused by any negligent or
wrongful act or omission of an employee of the Government while acting within the scope of his office or employment, or any other claim not cognizable under part
2 of this title.’’

§ 2673. Reports to Congress
The head of each federal agency shall report
annually to Congress all claims paid by it under
section 2672 of this title, stating the name of
each claimant, the amount claimed, the amount
awarded, and a brief description of the claim.
(June 25, 1948, ch. 646, 62 Stat. 983.)
REPEAL
Section 1(1) of Pub. L. 89–348, Nov. 8, 1965, 79
Stat. 1310, repealed the requirement that an annual report to Congress be made of the administrative adjustment of tort claims of $2,500 or
less, stating the name of each claimant, the
amount claimed, the amount awarded, and a
brief description of the claim.
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., § 922 (Aug. 2, 1946,
ch. 753, § 404, 60 Stat. 843).
Changes were made in phraseology.

Page 600

§ 2674. Liability of United States
The United States shall be liable, respecting
the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior
to judgment or for punitive damages.
If, however, in any case wherein death was
caused, the law of the place where the act or
omission complained of occurred provides, or
has been construed to provide, for damages only
punitive in nature, the United States shall be
liable for actual or compensatory damages,
measured by the pecuniary injuries resulting
from such death to the persons respectively, for
whose benefit the action was brought, in lieu
thereof.
With respect to any claim under this chapter,
the United States shall be entitled to assert any
defense based upon judicial or legislative immunity which otherwise would have been available
to the employee of the United States whose act
or omission gave rise to the claim, as well as
any other defenses to which the United States is
entitled.
With respect to any claim to which this section applies, the Tennessee Valley Authority
shall be entitled to assert any defense which
otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available
to the employee of the Tennessee Valley Authority whose act or omission gave rise to the
claim as well as any other defenses to which the
Tennessee Valley Authority is entitled under
this chapter.
(June 25, 1948, ch. 646, 62 Stat. 983; Pub. L.
100–694, §§ 4, 9(c), Nov. 18, 1988, 102 Stat. 4564,
4567.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., § 931(a) (Aug. 2, 1946,
ch. 753, § 410(a), 60 Stat. 843).
Section constitutes the liability provisions in the
second sentence of section 931(a) of title 28, U.S.C., 1940
ed.
Other provisions of section 931(a) of title 28, U.S.C.,
1940 ed., are incorporated in sections 1346(b), 1402, 2402,
2411, and 2412 of this title, but the provision of such section 931(a) that the United States shall not be liable for
interest prior to judgment was omitted as unnecessary
in view of section 2411 of this title, which provides that
interest on judgments against the United States shall
be computed from the date of judgment. Such section
2411 is made applicable to tort-claim actions by section
932 of title 28, U.S.C., 1940 ed.
Changes were made in phraseology.
SENATE REVISION AMENDMENT
For Senate amendment to this section, see 80th Congress Senate Report No. 1559, amendment No. 60.
AMENDMENTS
1988—Pub. L. 100–694 inserted two pars. at end entitling the United States and the Tennessee Valley Authority to assert any defense based upon judicial or legislative immunity.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100–694 effective Nov. 18, 1988,
and applicable to all claims, civil actions, and proceedings pending on, or filed on or after, Nov. 18, 1988, see
section 8 of Pub. L. 100–694 set out as a note under section 2679 of this title.