[Federal Register Volume 68, Number 246 (Tuesday, December 23, 2003)]
[Rules and Regulations]
[Pages 74187-74189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31489]
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DEPARTMENT OF JUSTICE
28 CFR Part 15
[CIV 102F; AG Order No. 2697-2003]
RIN 1105-AA62
Certification and Decertification in Connection With Certain
Suits Based Upon Acts or Omissions of Federal Employees and Other
Persons
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: In cases where employees of the Federal government are sued
for money damages based on alleged torts, if the Attorney General
certifies that the employees (and certain non-employees) were acting
within the scope of their employment at the time, the suit would be
deemed an action against the United States under the Federal Tort
Claims Act. This final rule conforms Department regulations to the
provisions of the Federal Employees Liability Reform and Tort
Compensation Act which expanded the tort protections for Federal
employees (and certain non-employees) by finalizing a proposed rule the
Department published on this subject on October 22, 2002.
DATES: This final rule is effective January 22, 2004.
FOR FURTHER INFORMATION CONTACT: Phyllis J. Pyles, Director, Torts
Branch, Civil Division, U.S. Department of Justice, P.O. Box 888,
Benjamin Franklin Station, Washington, DC 20044.
SUPPLEMENTARY INFORMATION: The Department published a proposed rule on
this subject on October 22, 2002, at 67 FR 64844. No comments were
received before the comment period closed on December 23, 2002, and,
accordingly, the Department is finalizing the proposed rule without
change.
Background
In 1961 Congress passed the Federal Drivers Act, 75 Stat. 539,
which immunized Federal employees from liability for money damages
based on torts involving the operation of motor vehicles within the
scope of their employment. In the event that a Federal employee was
sued in such a case, the statute authorized the Attorney General to
issue a certification that the employee was acting within the scope of
his or her employment at the time of the incident out of which the suit
arose, and the suit thereafter would be deemed a tort action against
the United States pursuant to the Federal Tort Claims Act, 28 U.S.C.
1346(b), 2671-2680.
In ensuing years, a number of similar certification statutes were
enacted to protect medical and legal personnel employed by certain
Federal agencies from tort liability for professional malpractice
arising within the scope of their employment. E.g., 10 U.S.C. 1054
(Department of Defense legal personnel); 10 U.S.C. 1089 (Department of
Defense medical personnel); 22 U.S.C. 2509(j) (Peace Corps medical
personnel); 22 U.S.C. 2702 (Department of State medical personnel); 38
U.S.C. 7316 (Department of Veterans Affairs medical personnel); 42
U.S.C. 233 (Public Health Service medical personnel); 42 U.S.C. 2458a
(National Aeronautics and Space Administration medical personnel).
Most recently, the Federal Employees Liability Reform and Tort
Compensation Act, 28 U.S.C. 2679(b)-(e), became law. This certification
statute, which replaced the less comprehensive Federal Drivers Act,
extended immunity from liability for money damages to Federal employees
for all common law torts committed within the scope of their
employment.
A number of certification statutes also have been enacted to
protect certain non-employees from tort liability arising out of
certain Federal programs. As part of the National Swine Flu
Immunization Program of 1976, 90 Stat. 1113, Congress authorized the
Attorney General to issue certifications in suits brought against
[[Page 74188]]
certain agencies, organizations, and individuals which participated in
the manufacture, distribution, and administration of the swine flu
vaccine. Similar authority has been conferred on the Attorney General
with respect to certain suits against fiduciaries of the Federal
Retirement Thrift Savings Fund (5 U.S.C. 8477(e)(4)); atomic weapon
testing contractors (42 U.S.C. 2212); and certain individuals enrolled
as volunteers in National Volunteer Programs (42 U.S.C. 5055(f)).
Finally, several statutes, without expressly providing for
certification, confer Federal employee status on certain persons who
would not otherwise be encompassed within the Federal Tort Claims Act's
definition of an ``employee of the United States'' as that term is
defined by 28 U.S.C. 2671. E.g., 5 U.S.C. 3102 (persons employed to
assist handicapped federal employees in performing duties); 5 U.S.C.
3111 (unpaid student volunteers); 7 U.S.C. 2272 (volunteers to
Department of Agriculture); 10 U.S.C. 1588 (volunteers to Armed
Services); 16 U.S.C. 18i (volunteers to National Park Service); 16
U.S.C. 558c (volunteers to Forest Service); 22 U.S.C. 2504 (Peace Corps
volunteers); 29 U.S.C. 1706 (Job Corps enrollees); 33 U.S.C. 569c
(volunteers to Army Corps of Engineers); 42 U.S.C. 3788 (volunteers to
Office of Justice Programs, Bureau of Justice Assistance, National
Institute of Justice Assistance, and Bureau of Justice Statistics).
Part 15 has not been revised since the enactment of the Federal
Employees Liability Reform and Tort Compensation Act. The regulations
were initially promulgated after passage of the Federal Drivers Act, 26
FR 11420 (1961), and revised as additional certification statutes were
enacted. See 40 FR 4910 (1975); 42 FR 15409 (1977); 44 FR 9379 (1979);
49 FR 44995 (1984). As last revised, Part 15 comprises three sections
(15.1, 15.2, and 15.3) and an appendix. Each section in turn is
subdivided into three subsections which govern suits subject to (1) the
Federal Drivers Act and the malpractice certification statutes; (2) the
swine flu statute; and (3) the atomic weapons testing statute.
This rule revises Part 15 to conform it to the provisions of the
Federal Employees Liability Reform and Tort Compensation Act, and to
delete references to specific certification statutes. Section 15.1 is
new and sets forth definitions of the terms ``appropriate Federal
agency,'' ``Federal employee,'' and ``covered person.'' Sections 15.2,
15.3, and 15.4 cover the same subjects which were covered by the prior
versions of sections 15.1, 15.2, and 15.3, respectively, except that
rather than the former tripartite subdivision, each section is
subdivided into two paragraphs, one of which governs suits against
Federal employees, and the other which governs suits against covered
persons. The appendix is removed.
Executive Order 12866
This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined not to constitute
``significant regulatory actions'' under section 3(f) of Executive
Order 12866 and, accordingly, it was not reviewed by OMB.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact upon a substantial number of small entities for the following
reasons: This rule pertains to Federal employees and certain non-
employees against whom civil actions are filed under circumstances in
which the remedy against the United States under the Federal Tort
Claims Act has been made exclusive of the remedy against such Federal
employees and non-employees. The regulation requires Federal employees
in those circumstances promptly to deliver the process and pleadings in
such actions to their employing Federal agency, and the agency to send
a report concerning the matter to the appropriate United States
Attorney and the responsible Branch Director of the Torts Branch, Civil
Division, Department of Justice. The regulation further requires
covered non-employees in those circumstances promptly to deliver the
process and pleadings in such actions to the appropriate Federal
agency, and the agency to send a report concerning the matter to the
appropriate United States Attorney and the responsible Branch Director
of the Torts Branch, Civil Division, Department of Justice. The rule's
economic impact is minimal.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of the United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 15
Authority delegations (Government agencies), Tort claims.
0
For the reasons stated in the preamble, the Department of Justice
revises 28 CFR part 15 to read as follows:
PART 15--CERTIFICATION AND DECERTIFICATION IN CONNECTION WITH
CERTAIN SUITS BASED UPON ACTS OR OMISSIONS OF FEDERAL EMPLOYEES AND
OTHER PERSONS
Sec.
15.1 General provisions.
15.2 Expeditious delivery of process and pleadings.
15.3 Agency report.
15.4 Removal and defense of suits.
Authority: 5 U.S.C. 301, 8477(e)(4); 10 U.S.C. 1054, 1089; 22
U.S.C. 2702; 28 U.S.C. 509, 510, and 2679; 38 U.S.C. 7316; 42 U.S.C.
233, 2212, 2458a, and 5055(f); and the National Swine Flu
Immunization Program of 1976, 90 Stat. 1113 (1976).
Sec. 15.1 General provisions.
(a) This part contains the regulations of the Department of Justice
governing the application for and the issuance of statutory
certifications and decertifications in connection with certain suits
based upon the acts or omissions of Federal employees and certain other
persons as to whom the remedy provided by the Federal Tort Claims Act,
28 U.S.C. 1346(b) and 2672, is made exclusive of any other civil action
or proceeding for money damages by reason of the same subject matter
[[Page 74189]]
against such Federal employees and other persons.
(b) As used in this part:
(1) Appropriate Federal agency means the Federal agency most
closely associated with the program out of which the claim or suit
arose. When it cannot be ascertained which Federal agency is the most
closely associated with the program out of which the claim or suit
arose, the responsible Director of the Torts Branch, Civil Division,
Department of Justice, shall be consulted and will thereafter designate
the appropriate Federal agency.
(2) Federal employee means ``employee of the United States'' as
that term is defined by 28 U.S.C. 2671.
(3) Covered person means any person other than a Federal employee
or the estate of a Federal employee as to whom Congress has provided by
statute that the remedy provided by 28 U.S.C. 1346(b) and 2672 is made
exclusive of any other civil action or proceeding for money damages by
reason of the same subject matter against such person.
Sec. 15.2 Expeditious delivery of process and pleadings.
(a) Any Federal employee against whom a civil action or proceeding
is brought for money damages for loss or damage to property, or
personal injury or death, on account of any act or omission in the
scope of the employee's office or employment with the Federal
Government, shall promptly deliver all process and pleadings served on
the employee, or an attested true copy thereof, to the employee's
immediate superior or to whomever is designated by the head of the
employee's department or agency to receive such papers. In addition, if
prior to the employee's receipt of such process or pleadings, the
employee receives information regarding the commencement of such a
civil action or proceeding, he shall immediately so advise his superior
or the designee. If the action is brought against the employee's estate
this procedure shall apply to the employee's personal representative.
The superior or designee shall provide the United States Attorney for
the district embracing the place where the action or proceeding is
brought and the responsible Branch Director of the Torts Branch, Civil
Division, Department of Justice, information concerning the
commencement of such action or proceeding, and copies of all process
and pleadings.
(b) Any covered person against whom a civil action or proceeding is
brought for money damages for loss or damage to property, or personal
injury or death, on account of any act or omission, under circumstances
in which Congress has provided by statute that the remedy provided by
the Federal Tort Claims Act is made the exclusive remedy, shall
promptly deliver to the appropriate Federal agency all process and
pleadings served on the covered person, or an attested true copy
thereof. In addition, if prior to the covered person's receipt of such
process or pleadings, the covered person receives information regarding
the commencement of such a civil action or proceeding, he shall
immediately so advise the appropriate Federal agency. The appropriate
Federal agency shall provide to the United States Attorney for the
district embracing the place where the action or proceeding is brought,
and the responsible Branch Director of the Torts Branch, Civil
Division, Department of Justice, information concerning the
commencement of such action or proceeding, and copies of all process
and pleadings.
Sec. 15.3 Agency report.
(a) The Federal employee's employing Federal agency shall submit a
report to the United States Attorney for the district embracing the
place where the civil action or proceeding is brought fully addressing
whether the employee was acting within the scope of his office or
employment with the Federal Government at the time of the incident out
of which the suit arose, and a copy of the report shall be sent by the
employing Federal agency to the responsible Branch Director of the
Torts Branch, Civil Division, Department of Justice.
(b) The appropriate Federal agency shall submit a report to the
United States Attorney for the district embracing the place where the
civil action or proceeding is brought fully addressing whether the
person was acting as a covered person at the time of the incident out
of which the suit arose, and a copy of the report shall be sent by the
appropriate Federal agency to the responsible Branch Director of the
Torts Branch, Civil Division, Department of Justice.
(c) A report under this section shall be submitted at the earliest
possible date, or within such time as shall be fixed upon request by
the United States Attorney or the responsible Branch Director of the
Torts Branch.
Sec. 15.4 Removal and defense of suits.
(a) The United States Attorney for the district where the civil
action or proceeding is brought, or any Director of the Torts Branch,
Civil Division, Department of Justice, is authorized to make the
statutory certification that the Federal employee was acting within the
scope of his office or employment with the Federal Government at the
time of the incident out of which the suit arose.
(b) The United States Attorney for the district where the civil
action or proceeding is brought, or any Director of the Torts Branch,
Civil Division, Department of Justice, is authorized to make the
statutory certification that the covered person was acting at the time
of the incident out of which the suit arose under circumstances in
which Congress has provided by statute that the remedy provided by the
Federal Tort Claims Act is made the exclusive remedy.
(c) A certification under this section may be withdrawn if a
further evaluation of the relevant facts or the consideration of new or
additional evidence calls for such action. The making, withholding, or
withdrawing of certifications, and the removal and defense of, or
refusal to remove or defend, such civil actions or proceedings shall be
subject to the instructions and supervision of the Assistant Attorney
General in charge of the Civil Division or his or her designee.
Dated: December 16, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-31489 Filed 12-22-03; 8:45 am]
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