B-158284, FEB. 18, 1966, 45 COMP. GEN. 514

B-158284, FEB. 18, 1966, 45 COMP. GEN. 514

PRISON AND PRISONERS - INJURY OR DEATH BENEFITS - RECOVERY - APPROPRIATION CHARGEABLE THE COMPROMISE OFFER ACCEPTED UNDER THE AUTHORITY OF 28 U.S.C. 2677 IN SETTLEMENT OF A SUIT BROUGHT AGAINST THE UNITED STATES BY A PRISON INMATE INJURED WHILE PERFORMING AN UNAUTHORIZED TASK, SETTLEMENT WHICH DOES NOT DESIGNATE THE SOURCE OF FUNDS TO BE USED, SHOULD BE PAID FROM THE PRISON INDUSTRIES FUND AS AN OPERATION EXPENSE OF THE FEDERAL PRISON INDUSTRIES, INC., RATHER THAN FROM THE CURRENT APPROPRIATION OF THE BUREAU OF PRISONS, THE RIGHT OF RECOVERY HAVING BEEN BASED ON NEGLIGENCE ON THE PART OF THE FEDERAL PRISON INDUSTRIES--- DEFINED IN 31 U.S.C. 846 AS A WHOLLY OWNED CORPORATION OF THE UNITED STATES--- IN ITS MAINTENANCE OF A CORPORATION- OWNED SAW.

TO THE ATTORNEY GENERAL, FEBRUARY 18, 1966:

REFERENCE IS MADE TO LETTER OF JANUARY 4, 1966, FROM MR. JOHN W. ADLER, ACTING ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, ASKING WHETHER PAYMENT OF A COMPROMISE SETTLEMENT DISCUSSED THEREIN SHOULD BE PAID FROM THE PRISON INDUSTRIES FUND OR FROM THE CURRENT APPROPRIATION FOR SALARIES AND EXPENSES, BUREAU OF PRISONS.

IT IS EXPLAINED THAT ON MAY 24, 1963, ALBERT MANARY, AN INMATE OF THE FEDERAL REFORMATORY, CHILLICOTHE, OHIO, SEVERED THE THUMB OF HIS RIGHT HAND WHILE OPERATING A POWER SAW IN THE CHAIR FACTORY OF FEDERAL PRISON INDUSTRIES, INC., LOCATED AT THE CHILLICOTHE INSTITUTION. WHILE MANARY WAS PROPERLY ASSIGNED TO THE CHAIR FACTORY AS AN INDUSTRIES EMPLOYEE AND WAS UNDER THE SUPERVISION OF INDUSTRIES CIVILIAN SUPERVISORS, THE USE OF THE PARTICULAR SAW BY HIM WAS PROHIBITED AND HE WAS MANUFACTURING CONTRABAND ARTICLES AT THE TIME OF THE ACCIDENT.

AS A RESULT OF THIS INJURY MANARY PRESENTED A CLAIM FOR COMPENSATION UNDER THE PROVISIONS OF 18 U.S.C. 4126. THIS CLAIM WAS DENIED BY THE ACCIDENT COMPENSATION COMMITTEE ON THE BASIS THAT MANARY WAS NOT INJURED IN THE PERFORMANCE OF ASSIGNED DUTY. SUBSEQUENTLY, ON SEPTEMBER 28, 1964, MANARY BROUGHT SUIT AGAINST THE UNITED STATES UNDER THE TORT CLAIMS ACT, 28 U.S.C. 1346 (B) AND BY AUTHORITY OF 28 U.S.C. 2677, THE UNITED STATES ATTORNEY, IN SEPTEMBER 1965, AGREED TO A COMPROMISE SETTLEMENT OF $3,600 AND SUCH SETTLEMENT HAS BEEN APPROVED BY THE COURT.

THE QUESTION WHETHER THE SETTLEMENT SHOULD BE PAID FROM THE PRISON INDUSTRIES FUND OR FROM THE APPROPRIATION FOR SALARIES AND EXPENSES, BUREAU OF PRISONS, ARISES BECAUSE THE SUIT WAS BROUGHT AGAINST THE UNITED STATES AND THE SETTLEMENT DOES NOT DESIGNATE THE SOURCE OF FUNDS TO BE UTILIZED IN EFFECTING PAYMENT.

FEDERAL PRISON INDUSTRIES, INC., IS A WHOLLY OWNED CORPORATION OF THE UNITED STATES AS DEFINED IN 31 U.S.C. 846. THE CORPORATION WAS CREATED BY EXECUTIVE ORDER NO. 6917, DATED DECEMBER 11, 1934, ISSUED PURSUANT TO THE ACT OF JUNE 23, 1934, 48 STAT. 1211 (SUBSEQUENTLY AMENDED, REWRITTEN, AND PRESENTLY CODIFIED IN 18 U.S.C. 4121 ET SEQ.), AND FUNCTIONS WITHIN THE DEPARTMENT OF JUSTICE UNDER THE GENERAL DIRECTION AND SUPERVISION OF THE ATTORNEY GENERAL.

THE CORPORATION CONDUCTS INDUSTRIAL OPERATIONS IN FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS AND IN CERTAIN MILITARY DISCIPLINARY BARRACKS FOR THE PURPOSE OF PROVIDING EMPLOYMENT FOR PHYSICALLY FIT INMATES. THESE OPERATIONS ARE DESIGNED TO GIVE THE INMATES AN OPPORTUNITY TO ACQUIRE KNOWLEDGE AND SKILL IN TRADES AND OCCUPATIONS THAT WILL ENABLE THEM TO EARN A LIVELIHOOD UPON THEIR RELEASE. THE GOODS AND SERVICES ARE SOLD TO OTHER GOVERNMENT AGENCIES.

WHILE, AS STATED ABOVE, THE SUIT WAS BROUGHT AGAINST THE UNITED STATES, COUNTS 3, 4, 5, AND 6 OF THE PLAINTIFF'S COMPLAINT READ AS FOLLOWS:

(3) ON OR ABOUT MAY 24TH, 1963, PLAINTIFF WAS CONFINED AS AN INMATE IN THE FEDERAL REFORMATORY AT CHILLICOTHE, OHIO. PLAINTIFF WAS ASSIGNED TO WORK IN THE BENDING ROOM DEPARTMENT OF THE FEDERAL PRISON INDUSTRIES FACTORY AT THE REFORMATORY. AT OR ABOUT 1:00 P.M. O-CLOCK THE PLAINTIFF WAS OPERATING A "DOUBLE HEAD SAW" CUTTING BACK POSTS WHEN THE SAW DROPPED ON HIS RIGHT HAND INJURING SAID HAND, AS HEREINAFTER SET FORTH.

(4) DEFENDANT THROUGH ITS AGENT WAS NEGLIGENT IN NOT HAVING PROPER SUPERVISION OF SAID FACTORY, AS NO SUPERVISOR WAS ON THE FLOOR AT THE TIME OF SAID ACCIDENT, AS REQUIRED BY PRISON RULES.

(5) DEFENDANT, THROUGH ITS AGENTS, WAS FURTHER NEGLIGENT IN THAT SAID DOUBLE HEAD SAW WAS DEFECTIVE AND WAS IN NEED OF REPAIRS, SPECIFICALLY DUE TO A FAULTY AIR HOSE AND PRESSURE PIPE.

(6) THAT AS A DIRECT RESULT OF DEFENDANT'S NEGLIGENCE PLAINTIFF SUFFERED THE FOLLOWING INJURIES TO HIS RIGHT HAND: AMPUTATION OF THE THUMB AND SEVERE LACERATIONS OF THE FINGERS AND PALM, MAKING PLAINTIFF'S HAND WEAK IN GRIP AND FUNCTION.

IN VIEW OF SUCH COUNTS, IT SEEMS CLEAR THAT THE PLAINTIFF BASED HIS RIGHT TO RECOVERY PRIMARILY ON THE ALLEGATION OF NEGLIGENCE ON THE PART OF THE CORPORATION IN ITS MAINTENANCE OF A CORPORATION-OWNED SAW. SUCH BEING THE CASE, IT IS OUR VIEW THAT THE CAUSE OF ACTION IS MORE CONCERNED WITH ACTIVITIES OF THE CORPORATION THAN IT IS WITH THE GENERAL ADMINISTRATION OF THE PRISON AND THAT THE SETTLEMENT PROPERLY SHOULD BE PAID FROM THE PRISON INDUSTRIES FUND AS AN OPERATION EXPENSE OF FEDERAL PRISON INDUSTRIES, INC. ..END :