B-177331, DEC 14, 1972

B-177331, DEC 14, 1972

CIVILIAN EMPLOYEE - VOLUNTARY PAYMENT OF TORT CLAIMS - REIMBURSEMENT - GOVERNMENT LIABILITY CONCERNING THE REIMBURSEMENT OF A VETERANS ADMINISTRATION EMPLOYEE FOR THE AMOUNT PAID BY HIM REPRESENTING PERSONAL INJURY AND PROPERTY DAMAGES RESULTING FROM AN AUTOMOBILE COLLISION INVOLVING A GOVERNMENT VEHICLE BEING OPERATED IN THE PHILIPPINES. WHILE THE V.A. HAS AUTHORITY UNDER THE FEDERAL TORT CLAIMS ACT TO SETTLE TORT CLAIMS ARISING IN FOREIGN COUNTRIES IN CONNECTION WITH V.A. OPERATIONS ABROAD, THE ACT DOES NOT AUTHORIZE REIMBURSEMENT OF A GOVERNMENT EMPLOYEE WHO HAS PAID FROM HIS OWN FUNDS A TORT CLAIM COGNIZABLE BY THE GOVERNMENT UNDER THE ACT. HOWEVER, WHEN VOLUNTARY PAYMENT IS MADE IN THE GOVERNMENT'S INTEREST UNDER URGENT AND UNFORSEEN CIRCUMSTANCES, A CLAIM FOR REIMBURSEMENT WILL BE ALLOWED. 33 COMP. GEN. 20 (1953). WHILE THE COMP. GEN. DOES NOT OBJECT TO REIMBURSEMENT IN THE INSTANT CASE, PAYMENT OF FUTURE CLAIMS BY THE GOVERNMENT IS STRONGLY URGED.

TO MR. DONALD E. JOHNSON:

THE LETTER OF OCTOBER 20, 1972, SIGNED BY MR. FRED B. RHODES, DEPUTY ADMINISTRATOR, REQUESTS OUR OPINION AS TO WHETHER A VETERANS ADMINISTRATION EMPLOYEE MAY BE REIMBURSED BY YOUR ADMINISTRATION FOR AN AMOUNT PAID BY HIM REPRESENTING PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM AN AUTOMOBILE COLLISION INVOLVING A GOVERNMENT VEHICLE BEING OPERATED IN THE PHILIPPINES BY SAID EMPLOYEE ACTING IN THE SCOPE OF HIS EMPLOYMENT.

THE LETTER STATES THAT YOUR ADMINISTRATION HAS FOR CONSIDERATION TWO CASES INVOLVING AUTOMOBILE COLLISIONS IN THE PHILIPPINES. IN EACH INSTANCE A GOVERNMENT VEHICLE WAS BEING DRIVEN BY A VETERANS ADMINISTRATION ATTORNEY PROCEEDING TO CONDUCT A FIELD INVESTIGATION FOR THE MANILA REGIONAL OFFICE. FOLLOWING EACH ACCIDENT, THE FIELD ATTORNEY INVOLVED PAID FROM HIS PERSONAL FUNDS THE DAMAGES INFLICTED UPON THE OTHER PARTY, PAYING IN ONE INSTANCE APPROXIMATELY $28.26 AND IN THE OTHER APPROXIMATELY $40.50.

AS INDICATED IN THE LETTER, THE VETERANS ADMINISTRATION, IN COMMON WITH OTHER GOVERNMENT DEPARTMENTS AND AGENCIES, HAS AUTHORITY UNDER THE FEDERAL TORT CLAIMS ACT, AS AMENDED, 28 U.S.C. 2672, TO ADMINISTRATIVELY SETTLE TORT CLAIMS ARISING IN THE UNITED STATES IF THE INJURED PARTIES FILE CLAIMS UNDER THE PROVISIONS OF THAT ACT. FURTHERMORE, YOU HAVE AUTHORITY UNDER 38 U.S.C. 236 TO PAY "TORT CLAIMS, IN THE MANNER AUTHORIZED IN THE FIRST PARAGRAPH OF SECTION 2672 OF TITLE 28, WHEN SUCH CLAIMS ARISE IN FOREIGN COUNTRIES IN CONNECTION WITH VETERANS' ADMINISTRATION OPERATIONS ABROAD."

NEITHER 28 U.S.C. 2672 NOR 38 U.S.C. 236 SPECIFICALLY AUTHORIZES REIMBURSEMENT OF A GOVERNMENT EMPLOYEE WHO HAS PAID FROM HIS OWN FUNDS A TORT CLAIM COGNIZABLE BY THE GOVERNMENT UNDER SAID STATUTES. BOTH STATUTES OBVIOUSLY CONTEMPLATE PAYMENT DIRECT FROM THE GOVERNMENT TO THE INJURED PARTY. THE OBLIGATION IN BOTH OF THE PRESENT INSTANCES WAS THAT OF THE GOVERNMENT UNDER THE CITED STATUTES, AND ANY PAYMENTS MADE BY YOUR EMPLOYEES WERE VOLUNTARY. IT IS WELL SETTLED THAT PAYMENT OF AN OBLIGATION BY A MERE VOLUNTEER, WHO IS UNDER NO LEGAL OBLIGATION TO MAKE THE PAYMENT AND WHO IS NOT REQUIRED TO DO SO FOR THE PRESERVATION OF ANY RIGHTS OR PROPERTY OF HIS OWN, DOES NOT PLACE SAID VOLUNTEER IN A POSITION TO DEMAND REIMBURSEMENT FROM ANYONE. NO OFFICER OR EMPLOYEE OF THE GOVERNMENT CAN CREATE A VALID CLAIM IN HIS FAVOR BY PAYING OBLIGATIONS OF THE UNITED STATES FROM HIS OWN FUNDS. THE UNITED STATES, AS REPRESENTED BY YOUR ADMINISTRATION, WAS ENTITLED TO AN OPPORTUNITY TO DETERMINE FOR ITSELF WHETHER ANY OBLIGATION RESTED UPON IT IN THESE TWO INSTANCES AND, IF SO, TO HAVE ITS DULY AUTHORIZED OFFICIALS ARRANGE FOR ITS LIQUIDATION. SEE 33 COMP. GEN. 20 (1953); 18 ID. 424 (1938); AND CASES CITED THEREIN.

HOWEVER, CONSIDERATION SHOULD BE GIVEN TO THE PURPOSE AND INTENT OF THE FEDERAL TORT CLAIMS ACT; THAT IS, TO PROTECT OFFICERS AND EMPLOYEES OF THE GOVERNMENT FROM LIABILITY FOR TORTS COMMITTED BY THEM WHILE ACTING WITHIN THE SCOPE OF THEIR OFFICE OR EMPLOYMENT. ALSO, EXCEPTIONS TO THE ABOVE- STATED RULE CONCERNING VOLUNTARY PAYMENTS HAVE BEEN RECOGNIZED IN CASES INVOLVING THE EXPENDITURE OF PERSONAL FUNDS IN THE GOVERNMENT'S INTEREST UNDER URGENT AND UNFORESEEN EMERGENCIES. 33 COMP. GEN. 20 (1953). THIS CONNECTION, THE LETTER OF OCTOBER 20, 1972, STATES THAT IN BOTH OF THE CASES CURRENTLY UNDER CONSIDERATION THE FIELD ATTORNEY INVOLVED PAID THE AMOUNT IN QUESTION TO AVOID THE REAL POSSIBILITY OF DETENTION BY THE PHILIPPINE POLICE AND TO OBTAIN THE RELEASE OF THE GOVERNMENT VEHICLE, WHICH HAD BEEN IMPOUNDED PENDING COMPLETION OF LOCAL POLICE INVESTIGATION, THUS FACILITATING THE CONDUCT OF GOVERNMENT BUSINESS.

HENCE, OUR OFFICE WILL NOT OBJECT IN THESE TWO INSTANCES INVOLVING TORT CLAIMS IN A FOREIGN COUNTRY TO REIMBURSEMENT OF THE EMPLOYEES INVOLVED, PROVIDED THAT YOUR ADMINISTRATION DETERMINES FROM THE FACTS IN EACH INSTANCE THAT IT WOULD HAVE PAID THESE CLAIMS - AND IN THE AMOUNTS INDICATED - IF CLAIMS THEREFOR HAD BEEN PRESENTED TO IT BY OR FOR THE INJURED PARTIES IN THE PROPER MANNER AS CONTEMPLATED BY THE CITED STATUTES.

THIS OPINION IS NOT TO BE CONSIDERED AS A PRECEDENT IN ANY SIMILAR SITUATIONS OCCURRING IN A FOREIGN COUNTRY. ALSO, SUCH ACTIONS ON THE PART OF EMPLOYEES IN FOREIGN COUNTRIES IN PAYING TORT CLAIMS COGNIZABLE UNDER 28 U.S.C. 2672 AND 38 U.S.C. 236 FROM THEIR PERSONAL FUNDS IN EXPECTATION OF REIMBURSEMENT FROM THE GOVERNMENT SHOULD, FOR THE REASONS INDICATED ABOVE, BE VERY STRONGLY DISCOURAGED, AND SHOULD NEVER, UNDER ANY CIRCUMSTANCES, BE CONDONED IN THE CASE OF TORT CLAIMS ARISING IN THE UNITED STATES. THE LAST PARAGRAPH OF 28 U.S.C. 2672 PROVIDES THAT THE ACCEPTANCE BY THE CLAIMANT OF AN AWARD, COMPROMISE, OR SETTLEMENT FROM THE GOVERNMENT UNDER SAID SECTION IS FINAL AND CONCLUSIVE ON THE CLAIMANT AND CONSTITUTES 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. WHILE SUCH STATUTORY RELEASE IS OF LITTLE OR NO VALUE IN THE INSTANCE OF A TORT CLAIM ARISING IN A FOREIGN COUNTRY, IT IS BINDING ON CLAIMANTS WHOSE TORT CLAIMS ARISE IN THE UNITED STATES. OBVIOUSLY, PAYMENT OF THE CLAIM BY THE EMPLOYEE FROM HIS PERSONAL FUNDS RATHER THAN BY THE GOVERNMENT FROM GOVERNMENT FUNDS WOULD RENDER THIS RELEASE PROVISION INEFFECTIVE, NOTWITHSTANDING SUBSEQUENT REIMBURSEMENT OF THE EMPLOYEE BY THE GOVERNMENT, AND SUCH SITUATIONS MUST BE AVOIDED.