B-196131, NOV 14, 1979

B-196131, NOV 14, 1979

PRECIS-UNAVAILABLE

RICHARD G. LUGAR, UNITED STATES SENATOR:

THIS IS IN FURTHER RESPONSE TO A LETTER FROM YOUR OFFICE DATED SEPTEMBER 14, 1979, REGARDING THE CLAIM OF MR. HAROLD A. RIGG, 1511 KENWOOD AVENUE, FORT WAYNE, INDIANA 46805.

MR. RIGG'S LETTER OF JULY 28, 1979, WITH SUPPORTING DOCUMENTS, ADDRESSED TO THE COMPTROLLER GENERAL WAS RECEIVED BY OUR CLAIMS DIVISION ON AUGUST 9, 1979. MR. RIGG'S LETTER ASSERTS A CLAIM FOR DAMAGES AGAINST THE UNITED STATES BASED UPON ALLEGED DISCRIMINATION BECAUSE OF AGE AND DENIAL OF CONSTITUTIONAL AND STATUTORY RIGHTS. A RESPONSE DATED AUGUST 22, 1979, COPY ENCLOSED, WAS SENT TO MR. RIGG IN WHICH IT WAS EXPLAINED THAT OUR OFFICE HAS NO JURISDICTION OVER CLAIMS FOR DAMAGES IN A TORT ACTION.

THE ALLEGATIONS CONTAINED IN MR. RIGG'S LETTER WHERE HE MAKES CLAIM FOR DAMAGES APPEAR NOT TO BE FOUNDED UPON ANY CONTRACT OR AGREEMENT WITH THE GOVERNMENT BUT RATHER UPON THE ALLEGED TORTIOUS MISCONDUCT OF THE GOVERNMENT AGENTS.

THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC. 1346(B) AND SECS. 2671 2680 (1976), DETERMINES THOSE INSTANCES IN WHICH THE GOVERNMENT IS LIABLE FOR TORTS COMMITTED BY GOVERNMENT EMPLOYEES. IN ESSENCE, THE GOVERNMENT'S POTENTIAL LIABILITY EXTENDS TO CLAIMS FOR MONEY DAMAGES FOR PROPERTY LOSS OR PERSONAL INJURY CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT UNDER CIRCUMSTANCES WHERE THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED. THE UNITED STATES DISTRICT COURTS HAVE EXCLUSIVE JURISDICTION OVER CLAIMS SOUNDING IN TORT UNDER THE FEDERAL TORT CLAIMS ACT. 28 U.S.C. 1346(B) (1976). HOWEVER, 28 U.S.C. SEC. 2674 SPECIFICALLY EXCLUDES RECOVERY FOR PUNITIVE DAMAGES AGAINST THE UNITED STATES, AND 28 U.S.C. SEC. 2680 EXCEPTS CLAIMS BASED ON ACTS OR OMISSIONS BY EMPLOYEES EXERCISING DUE CARE IN THE EXECUTION OF A STATUTE OR REGULATION, OR BASED ON THE EXERCISE OF A DISCRETIONARY FUNCTION OR DUTY.

CONCERNING MR. RIGG'S COMPLAINT AS TO AGE DISCRIMINATION, 29 U.S.C. 633A GIVES JURISDICTION OVER AGE DISCRIMINATION COMPLAINTS TO THE OFFICE OF PERSONNEL MANAGEMENT (FORMERLY THE CIVIL SERVICE COMMISSION) AND THE FEDERAL DISTRICT COURTS.

THE DETERMINATION OF PERSONNEL QUALIFICATIONS IS PRIMARILY THE RESPONSIBILITY AND FUNCTION OF THE EMPLOYING AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT. THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO ADJUDICATE SUCH DETERMINATIONS. DECISION B-191881, JULY 25, 1978. SEE ALSO, CHAPTER 33 - EXAMINATION, SELECTION, AND PLACEMENT - TITLE 5 OF THE U.S.C. AND RELATED SECTIONS OF THE FEDERAL PERSONNEL MANUAL. ALSO, REGULATIONS DEALING WITH EQUAL OPPORTUNITY ARE SET FORTH IN TITLE 5, CODE OF FEDERAL REGULATIONS, PART 713. NO PROVISION IS MADE FOR THE GENERAL ACCOUNTING OFFICE TO MAKE DETERMINATIONS UNDER THAT AUTHORITY. B-191881, SUPRA.

WE HAVE NO JURISDICTION OVER THE CLAIMS PRESENTED BY MR. RIGG AND CAN TAKE NO ACTION WITH RESPECT THERETO. WE DO, OF COURSE, CONTINUE TO EXERCISE OUR RESPONSIBILITY FOR AUDIT AND EVALUATION OF THE EXECUTIVE BRANCH. THE INFORMATION PRESENTED BY MR. RIGG HAS BEEN CONSIDERED IN CONNECTION WITH OUR RESPONSIBILITY IN THAT REGARD.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.