B-137595, OCTOBER 27, 1958, 38 COMP. GEN. 338

B-137595: Oct 27, 1958

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APPROPRIATIONS - AVAILABILITY - TORT CLAIMS THE ELIMINATION OF THE REQUIREMENTS IN 28 U.S.C. 2672 FOR A SPECIFIC APPROPRIATION FOR THE PAYMENT OF TORT CLAIMS PERMITS AN AGENCY HEAD TO DESIGNATE ANY APPROPRIATION WHICH DOES NOT CONTAIN A PROHIBITION OR LIMITATION FOR THE PAYMENT OF TORT CLAIMS PROVIDED THAT THE APPROPRIATION IS CURRENTLY AVAILABLE FOR OBLIGATION AT THE TIME THE CLAIM IS DETERMINED TO BE PROPER FOR PAYMENT. WHICH SETTLEMENTS HAVE BEEN APPROVED BY THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA. YOU STATE THAT WHILE THE BUREAU OF INDIAN AFFAIRS DOES NOT HAVE SPECIFIC FUNDS APPROPRIATED FOR PAYMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT. YOU STATE THAT THERE ARE SUFFICIENT FUNDS IN THIS APPROPRIATION TO MEET THE AMOUNTS REQUIRED AND THAT IT HAS BEEN DETERMINED THAT PAYMENT CAN BE MADE THEREFROM WITHOUT SERIOUS EFFECT TO THE BUREAU'S PROGRAMS AND WITHOUT NEED FOR A SUPPLEMENTAL APPROPRIATION.

B-137595, OCTOBER 27, 1958, 38 COMP. GEN. 338

APPROPRIATIONS - AVAILABILITY - TORT CLAIMS THE ELIMINATION OF THE REQUIREMENTS IN 28 U.S.C. 2672 FOR A SPECIFIC APPROPRIATION FOR THE PAYMENT OF TORT CLAIMS PERMITS AN AGENCY HEAD TO DESIGNATE ANY APPROPRIATION WHICH DOES NOT CONTAIN A PROHIBITION OR LIMITATION FOR THE PAYMENT OF TORT CLAIMS PROVIDED THAT THE APPROPRIATION IS CURRENTLY AVAILABLE FOR OBLIGATION AT THE TIME THE CLAIM IS DETERMINED TO BE PROPER FOR PAYMENT.

TO A. J. S. ECCLESTON, DEPARTMENT OF THE INTERIOR, OCTOBER 27, 1958:

YOUR LETTER OF OCTOBER 3, 1958, REFERENCE BUDGET AND FINANCE, FINANCE, TRANSMITTED COMPROMISE SETTLEMENTS IN 16 SEPARATE ACTIONS UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680, WHICH SETTLEMENTS HAVE BEEN APPROVED BY THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA. YOU STATE THAT WHILE THE BUREAU OF INDIAN AFFAIRS DOES NOT HAVE SPECIFIC FUNDS APPROPRIATED FOR PAYMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT, YOU PROPOSE TO PAY THE SETTLEMENTS FROM THE APPROPRIATION "14X2364 ROADS CONSTRUCTION AND MAINTENANCE, LIQUIDATION OF CONTRACT AUTHORIZATION, BUREAU OF INDIAN AFFAIRS.' YOU STATE THAT THERE ARE SUFFICIENT FUNDS IN THIS APPROPRIATION TO MEET THE AMOUNTS REQUIRED AND THAT IT HAS BEEN DETERMINED THAT PAYMENT CAN BE MADE THEREFROM WITHOUT SERIOUS EFFECT TO THE BUREAU'S PROGRAMS AND WITHOUT NEED FOR A SUPPLEMENTAL APPROPRIATION. YOU FURTHER STATE THAT IN PROPOSING TO USE THIS FUND THE BUREAU OF INDIAN AFFAIRS HAS DETERMINED THAT, IN THE ABSENCE OF A SPECIFIC APPROPRIATION FOR THE PAYMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT, ANY AND ALL FUNDS APPROPRIATED FOR BUREAU FUNCTIONS ARE AVAILABLE UNDER SECTION 9 OF THE ACT OF SEPTEMBER 23, 1950, PUBLIC LAW 830, 81ST CONGRESS, 64 STAT. 987, 28 U.S.C. 2672, FOR SUCH PAYMENTS AS MAY FROM TIME TO TIME BE REQUIRED. IN ORDER THAT THE CORRECTNESS OF THIS INTERPRETATION MAY BE FINALLY DETERMINED, YOU REQUEST OUR DECISION IN THE MATTER.

PRIOR TO THE ENACTMENT OF SECTION 9 OF PUBLIC LAW 830, 81ST CONGRESS, THE THIRD PARAGRAPH OF SECTION 2672 OF TITLE 28, U.S.C. READ AS FOLLOWS:

ANY AWARD MADE PURSUANT TO THIS SECTION, AND ANY AWARD, COMPROMISE, OR SETTLEMENT MADE BY THE ATTORNEY GENERAL PURSUANT TO SECTION 2677 OF THIS TITLE, SHALL BE PAID BY THE HEAD OF THE FEDERAL AGENCY CONCERNED OUT OF SUCH AGENCY'S APPROPRIATIONS THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED. SECTION 9 OF PUBLIC LAW 830, 64 STAT. 987, AMENDED THE ABOVE SECTION BY STRIKING THE WORDS "SUCH AGENCY'S APPROPRIATIONS THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED" AND SUBSTITUTING THEREFOR THE WORDS "APPROPRIATIONS AVAILABLE TO SUCH AGENCY.' ACCORDINGLY, THE THIRD PARAGRAPH OF 28 U.S.C. 2672 NOW READS AS FOLLOWS:

ANY AWARD MADE PURSUANT TO THIS SECTION, AND ANY AWARD, COMPROMISE, OR SETTLEMENT MADE BY THE ATTORNEY GENERAL PURSUANT TO SECTION 2677 OF THIS TITLE, SHALL BE PAID BY THE HEAD OF THE FEDERAL AGENCY CONCERNED OUT OF APPROPRIATIONS AVAILABLE TO SUCH AGENCY.

THE PURPOSE OF THE AMENDMENT EFFECTED BY SECTION 9 OF PUBLIC LAW 830 IS EXPLAINED IN SENATE REPORT NO. 2495, 81ST CONGRESS, 2ND SESSION, ON H.R. 9430, WHICH BECAME PUBLIC LAW 830, AS FOLLOWS:

SECTION 9

THE PURPOSE OF THIS SECTION IS TO ELIMINATE THE REQUIREMENT FOR A SPECIFIC AUTHORIZATION IN APPROPRIATION ACTS FOR PAYMENT OF TORT CLAIMS.

UNDER SECTION 2672 OF TITLE 28, U.S.C. HEADS OF DEPARTMENTS AND AGENCIES ARE AUTHORIZED TO SETTLE CLAIMS FOR DAMAGES OF $1,000 OR LESS AGAINST THE UNITED STATES FOR PERSONAL OR PROPERTY INJURIES CAUSED BY NEGLIGENCE OF GOVERNMENT EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. THIS SECTION PERMITS PAYMENT OF SUCH CLAIMS ONLY OUT OF APPROPRIATIONS MADE THEREFOR.

THE CITED SECTION WAS PART OF THE LEGISLATIVE REORGANIZATION ACT OF 1946. IMMEDIATELY AFTER THE PASSAGE OF THE ACT IT WAS THE PRACTICE TO PROVIDE IN APPROPRIATION ACTS FOR SPECIFIC SUMS FOR THE PAYMENT OF TORT CLAIMS. HOWEVER, IT WAS SOON REALIZED THAT A MONETARY LIMITATION ON THE AMOUNT AVAILABLE FOR SUCH CLAIMS SERVED NO USEFUL PURPOSE. ONCE THE CLAIM HAS BEEN DETERMINED AND SETTLED BY THE PROPER ADMINISTRATIVE OFFICIALS, THE GOVERNMENT'S LIABILITY IS ESTABLISHED. WHERE AWARDS EXCEEDED THE LIMITATIONS IT WAS NECESSARY TO INCREASE THE LIMITATIONS IN SUPPLEMENTAL APPROPRIATION ACTS, AND CONSEQUENTLY, THE PRACTICE OF PLACING MONETARY LIMITATIONS UPON PAYMENTS FOR TORT CLAIMS WAS SOON ABANDONED. UNDER THE PRESENT LAW, HOWEVER, IT IS STILL NECESSARY TO PROVIDE SPECIFIC AUTHORIZATION FOR THE USE OF FUNDS FOR SUCH PURPOSE, AND THUS THE PHRASE ,PAYMENT OF CLAIMS PURSUANT TO LAW (28 U.S.C. 2672)" IS REPEATED NO LESS THAN 53 TIMES IN THE REGULAR ANNUAL APPROPRIATION ACTS FOR 1950, ALTHOUGH IN ONLY 6 CASES IS THE PHRASE ACCOMPANIED BY A MONETARY LIMITATION. SIMILARLY, IN THE GENERAL APPROPRIATION BILL FOR 1951, THE PHRASE APPEARS 44 TIMES, ALTHOUGH IT IS ACCOMPANIED BY A LIMITATION IN ONLY 2 INSTANCES.

THE REPEAL OF THE REQUIREMENT FOR SPECIFIC AUTHORIZATIONS FOR THIS PURPOSE WOULD NOT LESSEN THE CONTROL OF THE CONGRESS, SINCE SPECIFIC LIMITATIONS STILL MAY BE IMPOSED UPON THE AMOUNTS AVAILABLE FOR PAYMENT OF TORT CLAIMS WHENEVER THE CONGRESS MIGHT DESIRE TO DO SO. FURTHER, THE LAW (28 U.S.C. 2673) PROVIDES FOR A REPORT TO BE MADE TO THE CONGRESS ANNUALLY OF ALL PAYMENTS OF SUCH CLAIMS. THE IDENTICAL EXPLANATION ALSO APPEARS IN HOUSE OF REPRESENTATIVES REPORT NO. 2984 ON THE SAME BILL.

THUS, SECTION 2672 AS NOW WRITTEN NO LONGER REQUIRES A SPECIFIC AUTHORIZATION IN AN AGENCY'S APPROPRIATION ACT TO RENDER THAT APPROPRIATION AVAILABLE FOR THE PAYMENT OF TORT CLAIMS. AS INDICATED IN THE PORTION OF THE SENATE REPORT QUOTED ABOVE, THE GOVERNMENT'S LIABILITY IN CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT IS ESTABLISHED BY THE DETERMINATION AND SETTLEMENT EFFECTED BY THE PROPER ADMINISTRATIVE OFFICIALS. SINCE THE TOTAL EXTENT OF SUCH LIABILITY FOR ANY AGENCY IS PRACTICALLY IMPOSSIBLE TO DETERMINE IN ADVANCE, MONETARY LIMITATIONS IN APPROPRIATION ACTS SERVED LITTLE PURPOSE AND THE REQUIREMENT IN THE ORIGINAL SECTION 2672 FOR A SPECIFIC AUTHORIZATION IN APPROPRIATION ACTS FOR THE PAYMENT OF TORT CLAIMS CONSTITUTED MERELY AN UNNECESSARY COMPLICATION IN THE ENACTMENT OF APPROPRIATION ACTS AND THE PAYMENT OF PROPERLY SETTLED TORT CLAIMS. THE AMENDMENT REMOVED THAT COMPLICATION. SECTION 2672 NOW CONSTITUTES A GENERAL AUTHORIZATION PERMITTING THE HEAD OF AN AGENCY TO SELECT FOR THE PAYMENT OF SUCH CLAIMS ANY APPROPRIATION OF THAT AGENCY WHICH IS CURRENTLY AVAILABLE FOR OBLIGATION AT THE TIME THE CLAIM IS DETERMINED TO BE PROPER FOR PAYMENT AND THE USE OF WHICH FOR SUCH PURPOSE IS NOT SPECIFICALLY PRESCRIBED OR LIMITED. ALSO, THE WORD AGENCY IS NOT CONFINED TO A PARTICULAR BUREAU BUT EMBRACES THE WHOLE OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT. SEE 28 U.S.C. 2671 DEFINING FEDERAL AGENCY. THUS, ANY APPROPRIATION SELECTED BY THE HEAD OF THE AGENCY, THE USE OF WHICH IS NOT SPECIFICALLY PROSCRIBED OR LIMITED AND WHICH IS CURRENTLY AVAILABLE TO THE DEPARTMENT FOR OBLIGATION MAY BE USED TO MAKES SUCH SETTLEMENTS.

ACCORDINGLY, THE SETTLEMENTS TRANSMITTED WITH YOUR LETTER, WHICH ARE RETURNED HEREWITH, MAY BE PAID FROM THE APPROPRIATION PROPOSED, IF THE USE OF SUCH APPROPRIATION THEREFOR MEETS WITH THE APPROVAL OF THE DEPARTMENT OF THE INTERIOR.