B-144079, OCT. 3, 1960

B-144079: Oct 3, 1960

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THE BOMB WAS LYING ON THE GROUND AT PLUMTREE ISLAND. WHICH IS USED AS A PRACTICE BOMBING RANGE BY THE DEPARTMENT OF THE AIR FORCE. THE ONLY CLAIMS WHICH ARE CONSIDERED UNDER THE ACT OF APRIL 10. ARE THOSE WHICH COULD BE SETTLED AND ADJUSTED BY OUR OFFICE BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THE ADJUSTMENT OF SUCH CLAIMS AND WHICH CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO DESERVE CONSIDERATION BY THE CONGRESS. 34 COMP. THE CLAIM IN THE INSTANT CASE IS ONE SOUNDING IN TORT AND FALLING WITHIN THE PURVIEW OF EITHER THE FEDERAL TORT CLAIMS ACT. THE HEAD OF EACH FEDERAL AGENCY IS GIVEN EXCLUSIVE AUTHORITY TO CONSIDER AND SETTLE CLAIMS FOR MONEY DAMAGES OF $2.

B-144079, OCT. 3, 1960

TO MONTAGUE, CUMMING AND WATKINS:

YOUR LETTER OF SEPTEMBER 21, 1960, REQUESTS, IN EFFECT, THAT WE CONSIDER AND REPORT TO THE CONGRESS, UNDER THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, THE CLAIM OF YOUR CLIENT, CHARLES WAVERLY WATSON, JR. IN THE SUGGESTED AMOUNT OF AT LEAST $25,000. THE CLAIM REPRESENTS DAMAGES FOR PERSONAL INJURIES SUFFERED BY YOUR CLIENT ON APRIL 13, 1958, WHEN AN AERIAL BOMB EXPLODED. THE BOMB WAS LYING ON THE GROUND AT PLUMTREE ISLAND, YORK COUNTY, VIRGINIA, WHICH IS USED AS A PRACTICE BOMBING RANGE BY THE DEPARTMENT OF THE AIR FORCE.

THE ONLY CLAIMS WHICH ARE CONSIDERED UNDER THE ACT OF APRIL 10, 1928, ARE THOSE WHICH COULD BE SETTLED AND ADJUSTED BY OUR OFFICE BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THE ADJUSTMENT OF SUCH CLAIMS AND WHICH CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO DESERVE CONSIDERATION BY THE CONGRESS. 34 COMP. GEN. 490.

THE CLAIM IN THE INSTANT CASE IS ONE SOUNDING IN TORT AND FALLING WITHIN THE PURVIEW OF EITHER THE FEDERAL TORT CLAIMS ACT, AS AMENDED, 28 U.S.C. 2671-2680, OR 10 U.S.C. 2733.

UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT, AS AMENDED, THE HEAD OF EACH FEDERAL AGENCY IS GIVEN EXCLUSIVE AUTHORITY TO CONSIDER AND SETTLE CLAIMS FOR MONEY DAMAGES OF $2,500 OR LESS (SEE 28 U.S.C. 2672). EXCLUSIVE JURISDICTION OF CIVIL ACTIONS ON CLAIMS FOR MONEY DAMAGES OVER THAT AMOUNT IS VESTED IN THE FEDERAL DISTRICT COURTS (SEE 28 U.S.C. 1346 (B) ). CONSEQUENTLY, WE HAVE NO JURISDICTION UNDER THE ACT WITH RESPECT TO COURT CLAIMS ARISING IN ANY FEDERAL AGENCY OTHER THAN THE GENERAL ACCOUNTING OFFICE.

SECTION 2733, TITLE 10, U.S.C. AUTHORIZES THE SECRETARY OF THE AIR FORCE TO SETTLE AND PAY CLAIMS NOT IN EXCESS OF $5,000 FOR PERSONAL INJURY OR DEATH CAUSED BY PERSONNEL OF THE AIR FORCE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, OR OTHERWISE INCIDENT TO NONCOMBAT ACTIVITIES OF THE DEPARTMENT. THIS CODE PROVISION ALSO PROVIDES THAT IF THE SECRETARY CONSIDERS A CLAIM IN EXCESS OF $5,000 TO BE MERITORIOUS, HE MAY PAY THE CLAIMANT $5,000 AND REPORT THE EXCESS TO THE CONGRESS FOR CONSIDERATION. MANIFESTLY, WHERE THE DEPARTMENT OF THE AIR FORCE HAS AUTHORITY TO SETTLE SUCH CLAIMS IN AMOUNTS LESS THAN $5,000 AND HAS BEEN GIVEN FUNDS FOR SUCH PURPOSE TOGETHER WITH AUTHORITY TO REPORT CLAIMS IN EXCESS OF THAT AMOUNT TO THE CONGRESS, WE HAVE NO AUTHORITY TO CONSIDER THE CLAIM WITH A VIEW TO ITS ALLOWANCE.

INASMUCH AS YOUR CLIENT'S CLAIM IS NOT ONE WHICH COULD BE SETTLED AND ADJUSTED BY OUR OFFICE, IT MAY NOT BE CONSIDERED BY US FOR REPORTING TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.