B-130096, JAN. 25, 1957

B-130096: Jan 25, 1957

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IT IS REPORTED THAT THE REGIONAL SOLICITOR OF THE DEPARTMENT OF THE INTERIOR AT PORTLAND. DAMAGE TO A FENCE AND LAND WAS ASSESSED AS $50. DAMAGE TO TREES WAS ASSESSED AT $80. THE LATTER ASSESSMENT WAS DOUBLED TO MAKE A TOTAL OF $210 IN THE LIGHT OF AN OREGON STATUTE. SUCH DOUBLE DAMAGES WERE REGARDED AS COMPENSATORY. BOTH THE DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF JUSTICE HAVE REFUSED TO ACCEPT LESS THAN THE COMPENSATORY DAMAGES FIXED BY THE OREGON STATUTE. DOUBT AS TO THE PROPRIETY OF CERTIFICATION IS DUE TO A PROVISION IN THE FEDERAL TORT CLAIMS LEGISLATION THAT "PUNITIVE" DAMAGES MAY NOT BE ALLOWED. IT SEEMS CLEAR THEREFROM THAT THE ELEMENTS AND EXTENT OF DAMAGES ARE REQUIRED TO BE DETERMINED BY THE LAW OF THE PLACE WHERE THE INJURY TOOK PLACE.

B-130096, JAN. 25, 1957

TO MR. J. E. PERRY, AUTHORIZED CERTIFYING OFFICER, BONNEVILLE POWER ADMINISTRATION:

IN LETTER OF DECEMBER 11, 1956, YOU REQUEST OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT AN AWARD OF $210 IN DAMAGES TO ANTHONY F. KAUTZ, TILLAMOOK, OREGON.

IT IS REPORTED THAT THE REGIONAL SOLICITOR OF THE DEPARTMENT OF THE INTERIOR AT PORTLAND, OREGON, UNDER AUTHORITY DELEGATED BY THE SECRETARY OF THE INTERIOR, FOUND, IN ADMINISTRATIVE DETERMINATION T-P 51, NOVEMBER 21, 1956, THAT MR. KAUTZ SUSTAINED DAMAGES TO HIS PROPERTY THROUGH THE NEGLIGENT OR WRONGFUL ACTS OF EMPLOYEES OF THE BONNEVILLE POWER ADMINISTRATION WHO TRESPASSED WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. IN FIXING THE AMOUNT OF AWARD, THE REGIONAL SOLICITOR FOUND THAT "THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT FOR $210.00, EXCLUSIVE OF PUNITIVE DAMAGES, UNDER THE LAW OF THE STATE OF OREGON WHERE THE ACT OCCURRED.' DAMAGE TO A FENCE AND LAND WAS ASSESSED AS $50. DAMAGE TO TREES WAS ASSESSED AT $80. THE LATTER ASSESSMENT WAS DOUBLED TO MAKE A TOTAL OF $210 IN THE LIGHT OF AN OREGON STATUTE, ORS 105.815, PROVIDING THAT LIABILITY FOR INJURIES TO TREES AS A RESULT OF INVOLUNTARY TRESPASS SHOULD BE TWICE THE AMOUNT ASSESSED. SUCH DOUBLE DAMAGES WERE REGARDED AS COMPENSATORY, RATHER THAN PUNITIVE, IN THE LIGHT OF A HOLDING TO THAT EFFECT BY THE SUPREME COURT OF OREGON IN KINZUA LUMBER CO. V. DAGGETT, 203 ORE. 585, 281 P.2D 221 (1955).

YOU ALSO REPORT THAT, IN THE CONVERSE SITUATION, INVOLVING TIMBER TRESPASSES AGAINST THE UNITED STATES, BOTH THE DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF JUSTICE HAVE REFUSED TO ACCEPT LESS THAN THE COMPENSATORY DAMAGES FIXED BY THE OREGON STATUTE, THE MEASURE OF DAMAGES WHICH MUST BE COLLECTED FOR TRESPASSES TO GOVERNMENT TIMBER LIKEWISE BEING DETERMINED BY THE LAW OF THE STATE IN WHICH TRESPASS OCCURS.

DOUBT AS TO THE PROPRIETY OF CERTIFICATION IS DUE TO A PROVISION IN THE FEDERAL TORT CLAIMS LEGISLATION THAT "PUNITIVE" DAMAGES MAY NOT BE ALLOWED. SEE 28 U.S.C. 2674.

THE PROVISIONS OF 28 U.S.C. 1346 AND 2672, THE LATTER DEALING WITH ADMINISTRATIVE ADJUSTMENT OF TORT CLAIMS NOT IN EXCESS OF $1,000, DEFINE THE LIABILITY UNDERTAKEN AS THAT EXISTING "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.' IT SEEMS CLEAR THEREFROM THAT THE ELEMENTS AND EXTENT OF DAMAGES ARE REQUIRED TO BE DETERMINED BY THE LAW OF THE PLACE WHERE THE INJURY TOOK PLACE. AS STATED IN STATE OF MARYLAND, TO USE OF BURKHART V. UNITED STATES, 165 F.2D 869, THE TESTS OF LOCAL LAW ORDINARILY ARE TO DETERMINE THE NATURE AND EXTENT OF RECOVERY PERMITTED. SEE DISCUSSION AT 1 A.L.R.2D 213, 234, SECTION 16, AND ADDITIONAL CASES CITED THEREIN.

IN ANY EVENT, IN AUTHORIZING THE HEAD OF EACH FEDERAL AGENCY TO CONSIDER AND SETTLE OTHERWISE PROPER CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES OF $1,000 OR LESS, THE LEGISLATION PROVIDES THAT---

"* * * ANY SUCH AWARD OR DETERMINATION SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT, EXCEPT WHEN PROCURED BY MEANS OF FRAUD.' (28 U.S.C. 2672).

NO JURISDICTION IS CONFERRED ON OUR OFFICE WITH RESPECT TO TORT CLAIMS ARISING IN ANY FEDERAL AGENCY OTHER THAN THE GENERAL ACCOUNTING OFFICE, AND IT FOLLOWS THAT ANY UNDERTAKING BY US TO DEFINE THE ELEMENTS OR EXTENT OF DAMAGES TO BE TAKEN INTO CONSIDERATION BY THE HEADS OF AGENCIES WOULD INVOLVE AN ASSESSMENT OF FEDERAL RESPONSIBILITY UNDER THE STATUTE AND BE TANTAMOUNT TO EXERCISING THE AUTHORITY VESTED IN THE HEAD OF AN AGENCY BY THE FINALITY PROVISIONS THEREOF. SEE COMMENT ON FINALITY PROVISIONS AT 1 A.L.R.2D 213, 226, SECTION 4.

HENCE, SAVE INSOFAR AS THERE MAY BE INVOLVED QUESTIONS RELATED TO THE OBSERVANCE OF CONDITIONS ESTABLISHED FOR EXERCISE OF THE ADMINISTRATIVE SETTLEMENT AUTHORITY, OR OTHERWISE FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE IN THE COURSE OF ITS AUDIT, WE FEEL THAT AN EXPRESSION OF OPINION CONCERNING THE MERITS OF CLAIMS FALLING WITHIN THE ADMINISTRATIVE SETTLEMENT JURISDICTION OF THE GENERAL TORT CLAIMS PROVISIONS WOULD BE INAPPROPRIATE.

UNDER THE CIRCUMSTANCES, SO FAR AS THIS OFFICE IS CONCERNED, WE WOULD NOT OBJECT TO YOUR CERTIFICATION OF THE VOUCHER, WHICH IS RETURNED HEREWITH.