B-145191, APR. 7, 1961

B-145191, APR. 7, 1961

TO MR. NEAL KING:

THIS IS IN REFERENCE TO YOUR CLAIM IN THE AMOUNT OF $750, SUBMITTED FOR OUR CONSIDERATION AS A MERITORIOUS CLAIM FOR REPORTING TO CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236. THE AMOUNT IS CLAIMED AS REIMBURSEMENT FOR A SETTLEMENT MADE BY YOU TO MR. RAY RHODES FOR DAMAGES RESULTING FROM AN ACCIDENT INVOLVING HIS TRUCK AND A VETERANS ADMINISTRATION AUTOMOBILE.

THE RECORD SHOWS THAT ON SEPTEMBER 23, 1960, WHILE DRIVING AN UNINSURED GOVERNMENT VEHICLE INCIDENT TO YOUR EMPLOYMENT AS A FIELD EXAMINER WITH THE SHREVEPORT VETERANS ADMINISTRATION CENTER, YOU WERE INVOLVED IN AN ACCIDENT WHICH RESULTED IN DAMAGES TO A TRUCK DRIVEN BY MR. RAY RHODES. IN ORDER TO AVOID PROBABLE LITIGATION AND LOSS OF YOUR DRIVER'S LICENSE, YOU REQUESTED AND WERE GRANTED PERMISSION BY YOUR SUPERVISOR TO PERSONALLY MAKE A CASH SETTLEMENT WITH MR. RHODES. THE SETTLEMENT WAS MADE IN THE AMOUNT OF $750, AND MR. RHODES EXECUTED A RELEASE OF ALL CLAIMS IN FAVOR OF YOU AND THE VETERANS ADMINISTRATION.

THE CHIEF ATTORNEY, VETERANS ADMINISTRATION CENTER, SHREVEPORT, LOUISIANA, BY LETTER DATED OCTOBER 12, 1960, RECOMMENDED TO THE GENERAL COUNSEL, VETERANS ADMINISTRATION, WASHINGTON, D.C., THAT YOU BE RELIEVED OF ANY AND ALL LIABILITY AND RESPONSIBILITY FOR THE ACCIDENT AND THAT YOU BE REIMBURSED $750 PAID TO MR. RHODES IN SETTLEMENT OF THE OBLIGATION. THAT RECOMMENDATION WAS NOT, HOWEVER, CONCURRED IN. BY LETTER DATED NOVEMBER 16, 1960, THE ACTING ASSISTANT GENERAL COUNSEL ADVISED THE CHIEF ATTORNEY THAT THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680, DOES NOT RELIEVE FEDERAL EMPLOYEES OF PERSONAL LIABILITY FOR NEGLIGENCE WHILE OPERATING GOVERNMENT VEHICLES, AND THAT IN A CASE WHEREIN A CLAIMANT PROCEEDS AGAINST THE EMPLOYEE SOLELY AND THE EMPLOYEE ENTERS INTO A SETTLEMENT WITH SUCH CLAIMANT, THERE IS NO AUTHORITY FOR ASSUMPTION OF THE LIABILITY BY THE GOVERNMENT AND FOR REIMBURSEMENT TO THE EMPLOYEE FOR THE AMOUNT INVOLVED IN THE SETTLEMENT. THE LETTER CITED OUR DECISION B- 122887, MARCH 31, 1955, 34 COMP. GEN. 490.

THE ABOVE-CITED DECISION OF OUR OFFICE CONCERNED A SITUATION, WHERE AS HERE, A SETTLEMENT HAD BEEN MADE BY THE EMPLOYEE, AND A CLAIM FOR REIMBURSEMENT SUBMITTED TO US FOR CONSIDERATION AS A MERITORIOUS CLAIM FOR REPORTING TO CONGRESS UNDER THE ACT OF APRIL 10, 1928. THE CLAIMS CONSIDERED UNDER THAT ACT ARE THOSE THAT BOTH (1) CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY AND (2) ARE WITHIN THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE TO CONSIDER AND SETTLE EVEN THOUGH THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT. THE UNITED STATES HAS NOT ASSUMED LIABILITY FOR SETTLEMENTS MADE BY GOVERNMENT EMPLOYEES IN CIRCUMSTANCES SUCH AS HERE INVOLVED, AND THE ACT OF APRIL 10, 1928 HAS CONSISTENTLY BEEN HELD BY THIS OFFICE TO BE INAPPLICABLE TO CLAIMS ARISING OUT OF ALLEGATIONS OF NEGLIGENCE ON THE PART OF EMPLOYEES OF THE UNITED STATES, WHETHER THE CLAIM IS FILED DIRECTLY BY THE INJURED PARTY OR BY A GOVERNMENT EMPLOYEE SEEKING REIMBURSEMENT FOR AMOUNTS PAID IN SETTLEMENT, THIS OFFICE HAVING BEEN GIVEN NO GENERAL AUTHORITY TO SETTLE TORT CLAIMS. SEE 34 COMP. GEN. 490; 16 ID. 642; 13 ID. 406. ACCORDINGLY, YOU ARE ADVISED THAT THE SUBJECT MATTER OF YOUR CLAIM PRECLUDES OUR CONSIDERING IT UNDER THE ACT OF APRIL 10, 1928.