B-59879, AUGUST 29, 1946, 26 COMP. GEN. 149

B-59879: Aug 29, 1946

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1946: I HAVE YOUR LETTER OF AUGUST 8. AS FOLLOWS: THE FOLLOWING PROVISION IS QUOTED FROM PUBLIC LAW 518. WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED.'. YOUR PROMPT DECISION IS REQUESTED AS TO THE IMMEDIATE AVAILABILITY OF THE FUNDS APPROPRIATED BY PUBLIC LAW 518 FOR THE PAYMENT OF CLAIMS APPROVED UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT. THIS DEPARTMENT RECEIVES THOUSANDS OF SMALL CLAIMS ANNUALLY AND IT IS MY EARNEST DESIRE TO SETTLE THEM AS EXPEDITIOUSLY AS POSSIBLE. PROVIDED THE LANGUAGE OF THE FEDERAL TORT CLAIMS ACT CITED ABOVE IS CONSTRUED AS BROAD ENOUGH TO WARRANT SUCH PAYMENTS OUT OF FUNDS APPROPRIATED FOR THIS SPECIFIC PURPOSE BUT PRIOR TO THE ENACTMENT OF THE LEGISLATIVE REORGANIZATION ACT.

B-59879, AUGUST 29, 1946, 26 COMP. GEN. 149

APPROPRIATIONS - AVAILABILITY - SETTLEMENTS UNDER FEDERAL TORT CLAIMS ACT IN VIEW OF THE FACT THAT SECTION 424 (A) OF THE FEDERAL TORT CLAIMS ACT OF AUGUST 2, 1946, EFFECTS A PARTIAL REPEAL OF THE ACT OF JUNE 16, 1921, AS AMENDED, INSOFAR AS IT RELATES TO THE AUTHORITY OF THE POSTMASTER GENERAL TO PAY PERSONAL OR PROPERTY DAMAGE CLAIMS BASED ON NEGLIGENCE ACCRUING ON AND AFTER JANUARY 1, 1945, MONEYS APPROPRIATED BY THE ACT OF JULY 20, 1946, TO ENABLE THE POSTMASTER GENERAL TO SETTLE SUCH CLAIMS UNDER THE 1921 ACT, AS AMENDED, MAY BE REGARDED AS AVAILABLE FOR THE PAYMENT OF NEGLIGENCE CLAIMS UNDER THE PROVISIONS OF SECTION 403 OF THE 1946 ACT.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 29, 1946:

I HAVE YOUR LETTER OF AUGUST 8, 1946, AS FOLLOWS:

THE FOLLOWING PROVISION IS QUOTED FROM PUBLIC LAW 518, AN ACT MAKING APPROPRIATIONS FOR THE TREASURY AND POST OFFICE DEPARTMENTS FOR THE FISCAL YEAR ENDING JUNE 30, 1947:

"PERSONAL OR PROPERTY DAMAGE CLAIMS: TO ENABLE THE POSTMASTER GENERAL TO PAY CLAIMS FOR DAMAGES, OCCURRING DURING THE FISCAL YEAR 1947, OR IN PRIOR FISCAL YEARS, TO PERSONS OR PROPERTY IN ACCORDANCE WITH THE PROVISIONS OF THE DEFICIENCY APPROPRIATION ACT, APPROVED JUNE 16, 1921 (5 U.S.C. 392), AS AMENDED BY THE ACT APPROVED JUNE 22, 1934, (31 U.S.C. 224C), $124,000.'

THE RECENTLY ENACTED LEGISLATIVE REORGANIZATION ACT INCLUDED AS TITLE IV THE FEDERAL TORT CLAIMS ACT, SECTION 424 OF WHICH REPEALED (IN PART) THE TWO ACTS CITED IN THE LAW QUOTED ABOVE. HOWEVER, SECTION 402 OF THE FEDERAL TORT CLAIMS ACT PROVIDES FOR THE CONSIDERATION AND SETTLEMENT OF CLAIMS FOR PERSONAL INJURIES AND PROPERTY DAMAGE CAUSED BY NEGLIGENCE IN AN AMOUNT NOT EXCEEDING $1,000, SECTION 403C READS AS FOLLOWS:

"ANY AWARD MADE TO ANY CLAIMANT PURSUANT TO THIS SECTION, AND ANY AWARD, COMPROMISE, OR SETTLEMENT OF ANY CLAIM COGNIZABLE UNDER THIS TITLE MADE BY THE ATTORNEY GENERAL PURSUANT TO SECTION 413, SHALL BE PAID BY THE HEAD OF THE FEDERAL AGENCY CONCERNED OUT OF APPROPRIATIONS THAT MAY BE MADE THEREFOR, WHICH APPROPRIATIONS ARE HEREBY AUTHORIZED.'

YOUR PROMPT DECISION IS REQUESTED AS TO THE IMMEDIATE AVAILABILITY OF THE FUNDS APPROPRIATED BY PUBLIC LAW 518 FOR THE PAYMENT OF CLAIMS APPROVED UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT. THIS DEPARTMENT RECEIVES THOUSANDS OF SMALL CLAIMS ANNUALLY AND IT IS MY EARNEST DESIRE TO SETTLE THEM AS EXPEDITIOUSLY AS POSSIBLE, THEREBY ELIMINATING UNNECESSARY CORRESPONDENCE, PROVIDED THE LANGUAGE OF THE FEDERAL TORT CLAIMS ACT CITED ABOVE IS CONSTRUED AS BROAD ENOUGH TO WARRANT SUCH PAYMENTS OUT OF FUNDS APPROPRIATED FOR THIS SPECIFIC PURPOSE BUT PRIOR TO THE ENACTMENT OF THE LEGISLATIVE REORGANIZATION ACT.

BECAUSE OF THE URGENCY OF THIS MATTER, IT IS HOPED THAT AN EARLY DECISION MAY BE RECEIVED FROM YOUR OFFICE.

SECTIONS 403 AND 424 OF THE FEDERAL TORT CLAIMS ACT, APPROVED AUGUST 2, 1946, 60 STAT. 843, 846--- HEREINAFTER REFERRED TO AS THE ACT--- PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 403. (A) SUBJECT TO THE LIMITATIONS OF THIS TITLE, AUTHORITY IS HEREBY CONFERRED UPON THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THE PURPOSE, ACTING ON BEHALF OF THE UNITED STATES, TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE ANY CLAIM AGAINST THE UNITED STATES FOR MONEY ONLY, ACCRUING ON AND AFTER JANUARY 1, 1945, ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF PERSONAL INJURY OR DEATH, WHERE THE TOTAL AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, UNDER CIRCUMSTANCES WHERE THE UNITED STATES, IF PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT FOR SUCH DAMAGE, LOSS, INJURY, OR DEATH, IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED. ( ITALICS SUPPLIED.)

SEC. 424. (A) ALL PROVISIONS OF LAW AUTHORIZING ANY FEDERAL AGENCY TO CONSIDER, ASCERTAIN, ADJUST, OR DETERMINE CLAIMS ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY, OR ON ACCOUNT OF PERSONAL INJURY OR DEATH, CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, ARE HEREBY REPEALED IN RESPECT OF CLAIMS COGNIZABLE UNDER PART 2 OF THIS TITLE AND ACCRUING ON AND AFTER JANUARY 1, 1945, INCLUDING, BUT WITHOUT LIMITATION, THE PROVISIONS GRANTING SUCH AUTHORIZATION NOW CONTAINED IN THE FOLLOWING LAWS:

SECTION 4 OF PUBLIC LAW NUMBERED 18, SIXTY-SEVENTH CONGRESS, APPROVED JUNE 16, 1921 (42 STAT. 63), AS AMENDED BY PUBLIC LAW NUMBERED 456, SEVENTY-THIRD CONGRESS, APPROVED JUNE 22, 1934 (48 STAT. 1207; U.S.C., TITLE 31, SEC. 224C).

(B) NOTHING CONTAINED HEREIN SHALL BE DEEMED TO REPEAL ANY PROVISION OF LAW AUTHORIZING ANY FEDERAL AGENCY TO CONSIDER, ASCERTAIN, ADJUST, SETTLE, DETERMINE, OR PAY ANY CLAIM ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF PERSONAL INJURY OR DEATH, IN CASES IN WHICH SUCH DAMAGE, LOSS, INJURY, OR DEATH WAS NOT CAUSED BY ANY NEGLIGENT OR WRONGFUL ACT OR OMISSION OF AN EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, OR ANY OTHER CLAIM NOT COGNIZABLE UNDER PART 2 OF THIS TITLE. ( ITALICS SUPPLIED.)

THE ACT OF JUNE 16, 1921, AS AMENDED BY THE ACT OF JUNE 22, 1934, 48 STAT. 1207---REFERRED TO IN SECTION 424 (A) OF THE ACT, SUPRA, AND IN THE APPROPRIATION (ACT OF JULY 20, 1946, 60 STAT. 581) QUOTED IN YOUR LETTER-- - PROVIDES FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO PERSONS OR PROPERTY CAUSED EITHER BY (1) THE NEGLIGENCE OF OFFICERS AND EMPLOYEES OR (2) THE OPERATION OF ANY ACTIVITY OF THE POST OFFICE DEPARTMENT NOT INVOLVING NEGLIGENCE. SEE 21 COMP. GEN. 341. HENCE, UNDER SECTIONS 424 (A) AND (B) OF THE ACT, SUPRA, THERE HAS RESULTED A REPEAL OF THE 1921 STATUTE, AS AMENDED, IN RESPECT TO THE PAYMENT OF CLAIMS BASED ON NEGLIGENCE ACCRUING ON AND AFTER JANUARY 1, 1945--- THE FEDERAL TORT CLAIMS ACT NOW BEING THE SOLE AND EXCLUSIVE STATUTORY AUTHORITY FOR THE ADMINISTRATIVE PAYMENT OF SUCH CLAIMS IN YOUR DEPARTMENT--- BUT, SO FAR AS CONCERNS NON-NEGLIGENCE CLAIMS AND THOSE CLAIMS PREDICATED ON NEGLIGENCE WHICH ACCRUED PRIOR TO JANUARY 1, 1945, THE SAID 1921 STATUTE IS STILL IN FORCE AND EFFECT.

THE FOREGOING MATTERS DELINEATE THE QUESTION FOR DECISION HERE, NAMELY, IS THE CURRENT APPROPRIATION FOR YOUR DEPARTMENT FOR THE PAYMENT OF DAMAGE CLAIMS AVAILABLE FOR THE PAYMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT? WHILE SAID APPROPRIATION PROVIDES, IN TERMS, FOR THE PAYMENT OF CLAIMS UNDER THE ACT OF JUNE 16, 1921, AS AMENDED, I FIND NOTHING IN THE LEGISLATIVE HISTORY THEREOF OR OTHERWISE TO INDICATE THAT THE REFERENCE TO THE 1921 STATUTE WAS OTHER THAN FOR MERE DESCRIPTIVE PURPOSES; NOR IS THE LANGUAGE OF SAID APPROPRIATION BELIEVED TO BE OF SUCH A RESTRICTIVE NATURE AS TO PRECLUDE THE USE THEREOF FOR THE PAYMENT OF CLAIMS UNDER A SUPERSEDING STATUTE--- SUCH AS HERE INVOLVED--- SUBSTANTIALLY SIMILAR IN ITS GENERAL SCOPE AND PURPOSE TO THAT OF THE LAW REPEALED. MOREOVER, I THINK THERE CAN BE LITTLE OR NO DOUBT THAT THE PRIMARY PURPOSE INTENDED TO BE SERVED BY THE AUTHORIZATION OF APPROPRIATIONS MADE BY SECTION 403 (C) OF THE ACT, 60 STAT. 843, QUOTED IN YOUR LETTER, IS TO PROVIDE FOR APPROPRIATIONS SUBSEQUENTLY TO BE MADE AVAILABLE IN THE CASE OF THOSE DEPARTMENTS AND AGENCIES WHICH, AT THE TIME OF THE ENACTMENT OF AUGUST 2, 1946, HAD NO SUCH FUNDS UNDER ITS CONTROL, SINCE IT IS DIFFICULT TO CONCEIVE THAT THE CONGRESS BY THE PARTIAL REPEAL OF THE 1921 STATUTE INTENDED TO CURTAIL OR TERMINATE THE USE OF AN EXISTING AVAILABLE APPROPRIATION, AS HERE, SO AS TO PRECLUDE PAYMENTS THEREFROM UNDER THE ACT OF AUGUST 2, 1946, AND THUS PLACE UPON YOUR DEPARTMENT THE BURDEN OF OBTAINING A NEW AND ADDITIONAL APPROPRIATION FOR NO APPARENT OR USEFUL PURPOSE UNDER THE CIRCUMSTANCES INDICATED.

ACCORDINGLY, THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.