B-126564, MARCH 13, 1956, 35 COMP. GEN. 511

B-126564: Mar 13, 1956

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THE AIR COORDINATING COMMITTEE WHICH WAS ESTABLISHED BY EXECUTIVE ORDER MAY BE CONSIDERED A FEDERAL AGENCY WITHIN THE ACT. YOUR DOUBT IN THE MATTER IS WHETHER THE AIR COORDINATING COMMITTEE IS A " FEDERAL AGENCY" WITHIN THE MEANING OF THAT TERM AS USED IN THE FEDERAL TORT CLAIMS ACT. THE AIR COORDINATING COMMITTEE WAS FORMALLY ESTABLISHED BY EXECUTIVE ORDER NO. 9781 OF SEPTEMBER 19. THE TERM " FEDERAL AGENCY" IS DEFINED IN 28 U.S.C. 2671 AS FOLLOWS: " FEDERAL AGENCY" INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENT OF THE UNITED STATES. SINCE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES ARE THE ONLY ONES SPECIFICALLY MENTIONED IN THE DEFINITION OF A FEDERAL AGENCY.

B-126564, MARCH 13, 1956, 35 COMP. GEN. 511

AIR COORDINATING COMMITTEE - A FEDERAL AGENCY FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT ALTHOUGH THE DEFINITION OF " FEDERAL AGENCY" IN THE FEDERAL TORT CLAIMS ACT SPECIFIES EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS, THE ACT AND ITS HISTORY INDICATE A LEGISLATIVE INTENT TO INCLUDE ALL AGENCIES NOT SPECIFICALLY EXCLUDED AND, THEREFORE, THE AIR COORDINATING COMMITTEE WHICH WAS ESTABLISHED BY EXECUTIVE ORDER MAY BE CONSIDERED A FEDERAL AGENCY WITHIN THE ACT.

TO CLIFTON G. HALL, DEPARTMENT OF COMMERCE, MARCH 13, 1956:

YOUR LETTER OF DECEMBER 19, 1955, REQUESTS AN ADVANCE DECISION WHETHER THE ENCLOSED VOUCHER IN THE AMOUNT OF $500 PROPERLY MAY BE CERTIFIED FOR PAYMENT. THE VOUCHER COVERS A PROPOSED SETTLEMENT, UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-80, OF THE CLAIMS OF IMPERIAL INSURANCE, INCORPORATED, DOROTHY K. MIZELLE, LONNIE MIZELLE, SEYMOUR KORN AND SAMUEL BARKER FOR AN INJURY TO MRS. DOROTHY K. MIZELLE AND DAMAGE TO A 1954 FORD SEDAN RESULTING FROM A COLLISION WITH A GOVERNMENT VEHICLE. YOUR DOUBT IN THE MATTER IS WHETHER THE AIR COORDINATING COMMITTEE IS A " FEDERAL AGENCY" WITHIN THE MEANING OF THAT TERM AS USED IN THE FEDERAL TORT CLAIMS ACT.

THE AIR COORDINATING COMMITTEE WAS FORMALLY ESTABLISHED BY EXECUTIVE ORDER NO. 9781 OF SEPTEMBER 19, 1946 (AS AMENDED BY EXECUTIVE ORDERS NOS. 9990 OF AUGUST 21, 1948; 10360 OF JUNE 11, 1952, AND 10438 OF MARCH 13, 1953), WITH RESPONSIBILITY FOR COORDINATING FEDERAL POLICY IN THE FIELD OF AVIATION. THE COMMITTEE, COMPOSED OF MEMBERS REPRESENTING SELECTED STATUTORY AGENCIES, EXAMINES AVIATION PROBLEMS AND DEVELOPMENTS AFFECTING MORE THAN ONE PARTICIPATING AGENCY; DEVELOPS AND RECOMMENDS INTEGRATED POLICIES TO BE CARRIED OUT AND ACTIONS TO BE TAKEN BY THE PARTICIPATING AGENCIES OR BY ANY OTHER GOVERNMENT AGENCY CHARGED WITH THE RESPONSIBILITY IN THE AVIATION FIELD; AND, TO THE EXTENT PERMITTED BY LAW, COORDINATES THE AVIATION ACTIVITIES OF SUCH AGENCIES EXCEPT ACTIVITIES RELATING TO THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS. THE COMMITTEE SUBMITS TO THE PRESIDENT SUCH RECOMMENDATIONS ON AVIATION POLICIES AS REQUIRE HIS ATTENTION BY REASON OF THEIR CHARACTER OR IMPORTANCE. IT PROVIDES CLOSE LIAISON BETWEEN GOVERNMENT AND INDUSTRY ACTIVITIES IN THE AVIATION FIELD AND ALSO CONSULTS WITH REPRESENTATIVES OF THE UNITED STATES TO THE INTERNATIONAL CIVIL AVIATION ORGANIZATION AND WITH FEDERAL INTERAGENCY BOARDS AND COMMITTEES CONCERNED WITH AVIATION ACTIVITIES. IN CREATING THE COMMITTEE THE PRESIDENT GAVE IT AN INDEPENDENT STATUS WITHIN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAKING IT RESPONSIBLE FOR COORDINATING FEDERAL POLICY IN THE FIELD OF AVIATION AND FOR REPORTING TO HIM SUCH RECOMMENDATIONS ON AVIATION POLICIES THAT REQUIRE HIS ATTENTION.

THE TERM " FEDERAL AGENCY" IS DEFINED IN 28 U.S.C. 2671 AS FOLLOWS:

" FEDERAL AGENCY" INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENT OF THE UNITED STATES, AND CORPORATIONS PRIMARILY ACTING AS, INSTRUMENTALITIES OR AGENCIES OF THE UNITED STATES BUT DOES NOT INCLUDE ANY CONTRACTOR WITH THE UNITED STATES.

SINCE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES ARE THE ONLY ONES SPECIFICALLY MENTIONED IN THE DEFINITION OF A FEDERAL AGENCY, IT WILL BE NECESSARY TO REFER TO THE LEGISLATIVE HISTORY OF THE FEDERAL TORT CLAIMS ACT TO DETERMINE THE LEGISLATIVE INTENT. IT IS STATED ON PAGE 31 OF SENATE REPORT NO. 1400, 79TH CONGRESS, THAT THE PROVISIONS OF THE ACT COVER ALL FEDERAL AGENCIES, INCLUDING GOVERNMENT CORPORATIONS, AND ALL FEDERAL OFFICERS AND EMPLOYEES, INCLUDING MEMBERS OF THE MILITARY AND NAVAL SERVICES. IT IS CLEAR FROM THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY THAT NO AGENCIES OR EMPLOYEES ARE EXCLUDED FROM THE OPERATION OF THE ACT, EXCEPT THOSE SPECIFICALLY ENUMERATED IN 28 U.S.C. 2680. SEE 26 COMP. GEN. 891. ACCORDINGLY, IT IS OUR VIEW THAT THE AIR COORDINATING COMMITTEE IS A FEDERAL AGENCY WITHIN THE MEANING OF THAT TERM AS USED IN THE FEDERAL TORT CLAIMS ACT.

THE VOUCHER AND RELATED PAPERS ARE RETURNED HEREWITH AND YOU ARE AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT, IF IT IS OTHERWISE CORRECT, AND PROVIDED THAT PAYMENT IS MADE FROM THE FUNDS CURRENTLY AVAILABLE WHEN FINAL DETERMINATION OF THE GOVERNMENT'S LIABILITY IS MADE. 27 COMP. GEN. 237.