B-122887, MARCH 31, 1955, 34 COMP. GEN. 490

B-122887, MARCH 31, 1955, 34 COMP. GEN. 490

CLAIMS - ACT OF APRIL 28, 1928 - PERSONAL INJURIES IN THE ABSENCE OF LEGISLATION IMPOSING UPON THE UNITED STATES A LEGAL OBLIGATION TO DEFEND GOVERNMENT EMPLOYEES WHO ARE SUED CIVILLY AS A RESULT OF NEGLIGENCE IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES OR IN THE ABSENCE OF THE ASSUMPTION BY THE UNITED STATES OF LIABILITY FOR LEGAL FEES AND JUDGMENTS INCIDENT TO SUCH SUITS, THE CLAIM OF AN EMPLOYEE FOR REIMBURSEMENT OF EXPENSES INCURRED IN AN OUT-OF-COURT SETTLEMENT PLUS ATTORNEY'S FEES, INCIDENT TO A SUIT FOR INJURIES SUSTAINED BY A FELLOW EMPLOYEE IN AN AUTOMOBILE ACCIDENT, DOES NOT CONTAIN THE ELEMENTS OF LEGAL LIABILITY OR EQUITY WHICH WOULD REQUIRE THE COMPTROLLER GENERAL TO REPORT THE CLAIM TO CONGRESS AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE NAVY, MARCH 31, 1955:

THE JUDGE ADVOCATE GENERAL'S LETTER OF DECEMBER 20, 1954, FILE JAG:I:3:WEH:EVS, FORWARDED THE CLAIM OF JESSIE E. PARKER, IN THE AMOUNT OF $800, FOR CONSIDERATION AS A MERITORIOUS CLAIM FOR REPORTING TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236. THE AMOUNT IS CLAIMED AS REIMBURSEMENT OF EXPENSES INCURRED BY HER AS THE RESULT OF A CIVIL SUIT FILED AGAINST HER FOR INJURIES SHE ALLEGEDLY CAUSED A FELLOW EMPLOYEE AND CONSISTS OF AN OUT-OF-COURT SETTLEMENT OF $600, PLUS $200 FOR ATTORNEY'S FEES PAID IN DEFENDING THE SUIT.

THE RECORD SHOWS THAT WHILE DRIVING A GOVERNMENT VEHICLE ON JUNE 3, 1953, THE CLAIMANT, AN EMPLOYEE OF THE UNITED STATES NAVAL AIR STATION, NORFOLK, VIRGINIA, WAS INVOLVED IN AN ACCIDENT WHICH RESULTED IN INJURIES TO A FELLOW EMPLOYEE. A CIVIL SUIT AGAINST THE CLAIMANT IN THE AMOUNT OF $10,500 WAS FILED IN THE CIRCUIT COURT OF THE CITY OF NORFOLK, VIRGINIA. THE SUIT WAS SETTLED OUT OF COURT FOR $600.

IT IS STATED THAT EMPLOYEES REQUIRED TO OPERATE OFFICIAL VEHICLES WHILE ENGAGED IN THEIR ASSIGNED DUTIES GENERALLY HAVE NOT PROTECTED THEMSELVES BY INSURANCE AND THAT CURRENTLY EFFECTIVE DIRECTIVES APPEARED TO JUSTIFY THIS. THOSE DIRECTIVES ARE JAG INSTRUCTION 5890.1 DATED JUNE 19, 1953, IN WHICH THE JUDGE ADVOCATE GENERAL OF THE NAVY ADVISED ALL SHIPS AND STATIONS THAT IT IS UNNECESSARY FOR OPERATORS OF GOVERNMENT-OWNED VEHICLES TO PROTECT THEMSELVES AGAINST LIABILITY BY OBTAINING INSURANCE FOR THAT PURPOSE, AND DEPARTMENT OF JUSTICE CIRCULAR NO. 4122 DATED MAY 11, 1950, TO ALL UNITED STATES ATTORNEYS, WHICH ANNOUNCED THE POLICY OF THE DEPARTMENT OF JUSTICE TO FURNISH COUNSEL AND REPRESENTATION TO GOVERNMENT EMPLOYEES WHO ARE SUED CIVILLY AS THE RESULT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES. THE RECORD SHOWS THE REASON GIVEN BY THE DEPARTMENT OF JUSTICE FOR NOT FURNISHING THE ASSISTANCE OF THE UNITED STATES DISTRICT ATTORNEY WAS THAT WHERE PLAINTIFF, AS WELL AS THE DEFENDANT, IS A FEDERAL EMPLOYEE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT A REPRESENTATION OF THE DEFENDANT BY THE UNITED STATES WOULD BE IN DEROGATION OF SUCH RIGHTS AS THE PLAINTIFF MIGHT HAVE UNDER LOCAL LAW, ALTHOUGH NO OVERRIDING INTEREST OF THE UNITED STATES IS AT ISSUE.

WHILE THE CITED INSTRUCTIONS OUTLINE THE GENERAL POLICY OF AFFORDING COUNSEL AND REPRESENTATION TO GOVERNMENT EMPLOYEES WHO ARE SUED CIVILLY AS A RESULT OF THE PERFORMANCE OF THEIR OFFICIAL DUTIES, THERE ARE NO STATUTES WHICH SPECIFICALLY IMPOSE UPON THE UNITED STATES A LEGAL OBLIGATION TO DEFEND SUCH SUITS OR MAKE IT LIABLE FOR THE PAYMENTS OF CLAIMS OF THE TYPE PRESENTED HERE. THE ONLY CLAIMS CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236, ARE THOSE THAT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY ON WHICH THE GENERAL ACCOUNTING OFFICE WOULD TAKE ACTION AND ALLOW BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT. THE UNITED STATES HAS NOT ASSUMED LIABILITY FOR SUCH LEGAL FEES OR RESPONSIBILITY FOR JUDGMENTS OR OTHER SETTLEMENTS AGAINST GOVERNMENT EMPLOYEES IN THE CIRCUMSTANCES HERE INVOLVED. ALSO, CLAIMS ARISING OUT OF ALLEGATIONS OF NEGLIGENCE ON THE PART OF EMPLOYEES OF THE UNITED STATES HAVE BEEN HELD NOT TO FALL WITHIN THE CLASS OF CASES COMPREHENDED BY THE 1928 ACT. 13 COMP. GEN. 406. ACCORDINGLY, WE FIND THAT THE CLAIM DOES NOT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY WHICH WOULD REQUIRE OUR REPORTING IT TO THE CONGRESS UNDER THE 1928 ACT.

THE PAPERS TRANSMITTED WITH THE LETTER OF DECEMBER 20, 1954, ARE RETURNED HEREWITH.